Annotation 10 - Fourteenth Amendment

Eminent Domain

The due process clause of the Fourteenth Amendment has been held to require that when a state or local governmental body, or a private body exercising delegated power, takes private property it must provide just compensation and take only for a public purpose. Applicable principles are discussed under the Fifth Amendment. 181  

Substantive Due Process and Noneconomic Liberty

At the heyday of economic substantive due process, the Court ruled in two cases which, while they also involved property, promised substantially to extend judicial supervision of the reasonableness of legislation. This promise was not realized, but later cases brought forth an avalanche of exposition. In Meyer v. Nebraska, 182 the Court struck down a state law forbidding the teaching in any school in the State, public or private, of any modern foreign language, other than English, to any child who had not successfully finished the eighth grade; in Pierce v. Society of Sisters, 183 it declared unconstitutional a state law which required public school education of children aged eight to sixteen. Both cases involved, as noted, property rights which the Court asserted were protected; the statute in Meyer interfered with the occupation of a teacher of German who had been convicted of teaching that language, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the values of their properties. 184 Yet in both cases the Court also permitted these persons adversely affected in their property interests to represent the interests of parents and children in the assertion of other aspects of ''liberty'' of which they could not be denied.

''Without doubt,'' Justice McReynolds said, liberty ''denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.'' 185 The right of the parents to have their children instructed in a foreign language was ''within the liberty of the [Fourteenth] Amendment.'' 186 Meyer was relied on in Pierce by the Court in asserting that the statute there ''unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.'' 187  

Other assertions of the liberty to be free from compulsory state provisions proved unsuccessful, 188 although dicta in these cases continued to broadly define liberty. 189 And in Loving v. Virginia, 190 a statute prohibiting interracial marriage was held to deny due process. Marriage was termed ''one of the 'basic civil rights of man''' and a ''fundamental freedom.'' ''The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.'' The classification of marriage rights on a racial basis was ''unsupportable.'' But the expansion of the Bill of Rights to restrict state action, especially the religion and free expression provisions of the First Amendment, afforded the Court an opportunity to base certain decisions voiding state policies on these grounds rather than on due process. 191  

In Poe v. Ullman, 192 Justice Harlan advocated the application of a due process standard of reasonableness--the same standard he would have applied to test economic legislation--to a Connecticut statute banning the use of contraceptives, even by married couples. According to the Justice, due process is limited neither to procedural guarantees nor restricted to the rights enumerated in the first eight Amendments of the Bill of Rights, but is rather ''a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions.'' The liberty protected by the clause ''is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.'' Applying a lengthy analysis, he concluded that the statute infringed upon a fundamental liberty without the showing of a justification which would support the intrusion. Yet, when the same issue returned to the Court, a majority of the Justices, rejecting reliance on substantive due process, 193 decided it on the basis of the statute's invasion of privacy, a ''penumbral'' right protected by a matrix of constitutional provisions. 194 The analysis, however, approached the matter in terms, and in reliance on cases, reminiscent of substantive due process, although the separate concurrences of Justices Harlan and White specifically based on substantive due process, 195 indicates that the majority's position was at least definitionally different. Subsequent cases, functionally grounded in equal protection analysis, relied in great degree upon a view of rationality and reasonableness not too different from Justice Harlan's dissent in Poe v. Ullman. 196  

The Court remains divided over how broadly to define a liberty interest. In Bowers v. Hardwick, 197 for example, the Court majority found no right to engage in homosexual sodomy, and rejected the dissent's suggestion that focus should instead be placed on a right to privacy and autonomy in matters of sexual intimacy. Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. v. Gerald D., involving the rights of an adulterous biological father to establish paternity and to associate with his child. 198 Justice Scalia, joined only by Chief Justice Rehnquist in this part of the plurality decision, argued for ''the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.'' 199 Dissenting Justice Brennan, joined by two others, rejected the emphasis on tradition, and argued instead that the Court should ''ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of 'liberty.''' 200 The resurgence of substantive due process reasoning became evident upon the Court's confrontation with cases raising the constitutionality of laws proscribing or limiting abortions.

Abortion .--Laws limiting or prohibiting abortions in practically all the States, the District of Columbia, and the territories were invalidated by a ruling recognizing a right of personal privacy protected by the due process clause that included a qualified right of a woman to determine whether or not to bear a child. On the basis of its analysis of the competing individual rights and state interests, the Court in Roe v. Wade 201 discerned a three-stage balancing of rights and interests extending over the full nine-month term of pregnancy.

''(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

''(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

''(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'' 202  

A lengthy history of the medical and legal views of abortion apparently convinced the Court that the prohibition of abortion lacked the solid foundation necessary to preserve such prohibitions from constitutional review. 203 Similarly, a review of the concept of ''person'' as protected in the due process clause and in other provisions of the Constitution established to the Court's satisfaction that the word ''person'' did not include the unborn, and therefore that the unborn lacked federal constitutional protection. 204 Without treating the question in more than summary fashion, the Court announced that ''a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist in the Constitution'' and that it is ''founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action.'' 205 ''This right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.'' 206 Moreover, this right of privacy is ''fundamental'' and, drawing upon the strict standard of review in equal protection litigation, the Court held that the due process clause required that the regulations limiting this fundamental right may be justified only by a ''compelling state interest'' and must be narrowly drawn to express only the legitimate state interests at stake. 207 Assessing the possible interests of the States, the Court rejected as unsupported in the record and ill-served by the laws in question justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions. The state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue when life begins. Two valid state interests were recognized, however. ''[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.''' 208  

This approach led to the three-stage concept quoted above. Because medical data indicated that abortion prior to the end of the first trimester is relatively safe, the mortality rate being lower than the rates for normal childbirth, and because the fetus has no capability of meaningful life outside the mother's womb, the State has no ''compelling interest'' in the first trimester and ''the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.'' 209 In the intermediate trimester, the danger to the woman increases and the State may therefore regulate the abortion procedure ''to the extent that the regulation reasonably relates to the preservation and protection of maternal health,'' but the fetus is still not able to survive outside the womb, and consequently the actual decision to have an abortion cannot be otherwise impeded. 210 ''With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.'' 211  

In a companion case, the Court struck down three procedural provisions of a permissive state abortion statute. 212 These required that the abortion be performed in a hospital accredited by a private accrediting organization, that the operation be approved by the hospital staff abortion committee, and that the performing physician's judgment be confirmed by the independent examination of the patient by two other licensed physicians. These provisions were held not to be justified by the State's interest in maternal health because they were not reasonably related to that interest. 213 And a residency provision was struck down as violating the privileges and immunities clause. 214 But a clause making the performance of an abortion a crime except when it is based upon the doctor's ''best clinical judgment that an abortion is necessary'' was upheld against vagueness attack and was further held to benefit women seeking abortions inasmuch as the doctor could utilize his best clinical judgment in light of all the attendant circumstances. 215  

These decisions were reaffirmed and extended when the Court was faced with a restrictive state statute enacted after Roe making access to abortions contingent upon spousal or parental consent and imposing restraints upon methods. 216 Striking down all the substantial limitations, the Court held (1) that the spousal consent provision was an attempt by the State to delegate a veto power over the decision of the woman and her doctor that the State itself could not exercise, 217 (2) that no significant state interests justified the imposition of a blanket parental consent requirement as a condition of the obtaining of an abortion by an unmarried minor during the first 12 weeks of pregnancy, 218 and (3) that a criminal pro vision requiring the attending physician to exercise all care and diligence to preserve the life and health of the fetus without regard to the stage of viability was inconsistent with Roe. 219 Sustained were provisions that required the woman's written consent to an abortion with assurances that it is informed and freely given, and provisions mandating reporting and recordkeeping for public health purposes with adequate assurances of confidentiality. A provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional since in the absence of another comparably safe technique it did not qualify as a reasonble protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks. 220  

In other rulings applying Roe, the Court struck down some requirements and upheld others. A requirement that all abortions performed after the first trimester be performed in a hospital was invalidated as imposing ''a heavy, and unnecessary, burden on women's access to a relatively inexpensive, otherwise accessible, and [at least during the first few weeks of the second trimester] safe abortion procedure.'' 221 A state may, however, require that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not ''depart from accepted medical practice.'' 222 Various ''informed consent'' requirements were struck down as intruding upon the discretion of the physician, and as being aimed at discouraging abortions rather than at informing the pregnant woman's decision; 223 while the state has a legitimate in terest in ensuring that the woman's consent is informed, the Court explained, it may not demand of the physician ''a recitation of an inflexible list of information'' unrelated to the particular patient's health, and, for that matter, may not demand that the physician rather than some other qualified person render the counseling. 224 The Court also invalidated a 24-hour waiting period following a woman's written, informed consent. 225 On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, since the same requirements were imposed for in- hospital abortions and for almost all other in-hospital surgery. 226 Also, the Court upheld a requirement that a second physician be present at abortions performed after viability in order to assist in saving the life of the fetus. 227  

The Court refused to extend Roe to the area of public funding to pay for abortions for the pregnant indigent, holding that neither due process nor equal protection requires government to use public funds for this purpose. 228 Due process, the Court held, does not obligate the States to pay the pregnancy-related medical expenses of indigent women, even though both abortion and the right to bear the child to birth are ''fundamental'' rights. 229 But the more critical question was the equal protection restraint imposed when government does provide public funds for medical care to indigents; may it accord differential treatment to abortion and childbirth and prefer the latter? The States may do so, the Court continued, because it is rationally related to a lawful purpose to encourage normal childbirth. The use of the rational basis test required a rejection of the compelling state interest test in the following manner. First, the more severe test was not activated by a classification impacting on a suspect class, neither wealth nor indigency being such a class. Second, and most significant for abortion adjudication, the Court held that state refusal to pay for abortions did not impinge upon a fundamental right. Prior state restrictions which had been invalidated, the Court continued, had created absolute obstacles to the obtaining of an abortion. While a state-created obstacle need not be absolute to be impermissible, it must at a minimum ''unduly burden'' the right to terminate a pregnancy. To allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining an abortion nor does it unduly burden the right. The condition--indigency--that is the barrier to getting an abortion was not created by government nor does the State add to the burden that exists already. ''An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the services she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there.'' 230 Applying the same principles, the Court held that a municipal hospital could constitutionally provide hospital services for indigent women for childbirth but deny services for abortion. 231  

In 1983 the Court expressly reaffirmed Roe v. Wade, 232 and continued to apply its principles to a variety of state statutes attempting to regulate the circumstances of abortions. The Court's 1989 decision in Webster v. Reproductive Health Services, 233 however, signalled a break with the past even though Roe v. Wade was not overruled.

Webster upheld two aspects of Missouri's statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational age of 20 weeks, make an actual viability determination. 234 In two 1990 cases the Court then upheld parental notification requirements. Ohio's requirement that one parent be notified of a minor's intent to obtain an abortion, or that the minor use a judicial bypass procedure to obtain the approval of a juvenile court, was approved. 235 And, while the Court ruled that Minnesota's requirement that both parents be notified was invalid standing alone, the statute was saved by a judicial bypass alternative. 236  

The Webster Court was split in its approach to Missouri's viability determination requirement, and in its approach to Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe, but found no occasion to overrule it. Instead, the plurality's approach would water down Roe by applying a less stringent standard of review. The viability testing requirement is valid, the plurality contended, because it ''permissibly furthers the State's interest in protecting potential human life.'' 237 Justice O'Connor concurred in the result because in her view the requirement did not impose ''an undue burden'' on a woman's right to an abortion, and Justice Scalia concurred in the result while urging that Roe be overruled outright. That Webster may have changed the focus of debate was illustrated by the Court's approach to the parental notification issue. A Court majority in Hodgson invalidated Minnesota's alternative procedure requiring notification of both parents without judicial bypass, not because it burdened a fundamental right, but because it did ''not reasonably further any legitimate state interest.'' 238  

Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life from the point of viability, and hence did not challenge Roe's trimester framework. 239 Nonetheless, a majority of Justices appeared ready to reject a strict trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest ''should come into existence only at the point of viability;'' 240 Justice O'Connor repeated her view that the trimester approach is ''problematic;'' 241 and, as mentioned, Justice Scalia would do away with Roe altogether.

Three years later the Court, invoking principles of stare decisis, reaffirmed Roe's ''essential holding,'' but restated that holding in terms of undue burden and also abandoned Roe's reliance on the trimester approach. Roe's ''essential holding,'' said the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 242 has three parts. ''First is a recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.''

This restatement of Roe's essentials, recognizing a legitimate state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability still marked ''the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,'' 243 but less burdensome regulations could be applied before viability. ''What is at stake,'' the three-Justice plurality asserted, ''is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's ex ercise of the right to choose.'' Thus, unless an undue burden is imposed, states may adopt measures ''designed to persuade [a woman] to choose childbirth over abortion.'' 244  

Application of these principles led the Court to uphold several aspects of Pennslyvania's abortion control law, in the process overruling precedent, but to invalidate what was arguably the most restrictive provision. Four challenged provisions of the law were upheld: a definition of ''medical emergency'' controlling exemptions from the Act's other limitations; recordkeeping and reporting requirements imposed on facilities that perform abortions; an informed consent and 24-hour waiting period requirement; and a parental consent requirment, with possibility for judicial bypass, applicable to minors. Invalidated as an undue burden on a woman's right to an abortion was a spousal notification requirement.

It was a new alignment of Justices that restated and preserved Roe. Joining Justice O'Connor in a jointly authored opinion adopting and applying Justice O'Connor's ''undue burden'' analysis were Justices Kennedy and Souter. Justices Blackmun and Stevens joined parts of the plurality opinion, but dissented from other parts. Justice Stevens would not have abandoned trimester analysis, and would have invalidated the 24-hour waiting period and aspects of the informed consent requirement. Justice Blackmun, author of the Court's opinion in Roe, asserted that ''the right to reproductive choice is entitled to the full protection afforded by this Court before Webster,'' 245 and would have invalidated all of the challenged provisions. Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, would have overruled Roe and upheld all challenged aspects of the Pennsylvania law.

Overruled in Casey were earlier decisions that had struck down informed consent and 24-hour waiting periods. 246 Given the state's legitimate interests in protecting the life of the unborn and the health of the potential mother, and applying ''undue burden'' analysis, the three-Justice plurality found these requirements permissible. Requiring informed consent for medical procedures is both commonplace and reasonable, and, in the absence of any evidence of burden, the state could require that information relevant to informed consent be provided by a physician rather than an assistant. The 24-hour waiting period was approved both in theory (it being reasonable to assume ''that important decisions will be more informed and deliberate if they follow some period of reflection'') and in practice (in spite of ''troubling'' findings of increased burdens on poorer women who must travel significant distances to obtain abortions, and on all women who must twice rather than once brave harassment by anti-abortion protesters). 247 The Court also upheld application of an additional requirement that women under age 18 obtain the consent of one parent or avail themselves of a judicial bypass alternative.

On the other hand, the Court 248 distinguished Pennsylvania's spousal notification provision as constituting an undue burden on a woman's right to choose an abortion. ''A State may not give to a man the kind of dominion over his wife that parents exercise over their children'' (and that men exercised over their wives at common law). 249 Although there was an exception for a woman who believed that notifying her husband would subject her to bodily injury, this exception was not broad enough to cover other forms of abusive retaliation, e.g., psychological intimidation, bodily harm to children, or financial deprivation. To require a wife to notify her husband in spite of her fear of such abuse would unduly burden the wife's liberty interest as an individual to decide whether to bear a child.


[Footnote 181] For analysis of the law of eminent domain, see supra, pp. 1369-95.

[Footnote 182]   262 U.S. 390 (1923). Justices Holmes and Sutherland entered a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412 (1923).

[Footnote 183]   268 U.S. 510 (1925).

[Footnote 184] Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 531 , 533, 534 (1928).

[Footnote 185]   262 U.S. at 399 .

[Footnote 186] Id. at 400.

[Footnote 187]   268 U.S. at 534 -35.

[Footnote 188] E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922) (compulsory vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms of insanity or imbecility); Minnesota v. Probate Court ex rel. Pearson, 309 U.S. 270 (1940) (institutionalization of habitual sexual offenders as psychopathic personalities).

[Footnote 189] See also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage and procreation are among ''the basic civil rights of man''); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (care and nurture of children by the family are within ''the private realm of family life which the state cannot enter'').

[Footnote 190]   388 U.S. 1, 12 (1967).

[Footnote 191] Indeed, in Griswold v. Connecticut, 381 U.S. 479, 482 (1965), Justice Douglas reinterpreted Meyer and Pierce as having been based on the First Amendment. Note that in Epperson v. Arkansas, 393 U.S. 97, 105 (1968), and Tinker v. Des Moines School District, 393 U.S. 503, 506 -07 (1969), Justice Fortas for the Court approvingly noted the due process basis of Meyer and Pierce while deciding both cases on First Amendment grounds.

[Footnote 192]   367 U.S. 497, 522 , 539-45 (1961). Justice Douglas, also dissenting, relied on a due process analysis, which began with the texts of the first eight Amendments as the basis of fundamental due process and continued into the ''emanations'' from this as also protected. Id. at 509.

[Footnote 193] ''We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.'' Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (opinion of Court by Justice Douglas).

[Footnote 194] Supra, pp. 1504-05.

[Footnote 195]   381 U.S. at 499 , 502.

[Footnote 196] Eisenstadt v. Baird, 405 U.S. 438 (1972), is the principal case. See also Stanley v. Illinois, 405 U.S. 645 (1972).

[Footnote 197]   478 U.S. 186 (1986).

[Footnote 198]   491 U.S. 110 (1989). Five Justices agreed that a liberty interest was implicated, but the Court ruled that California's procedures for establishing paternity did not unconstitutionally impinge on that interest.

[Footnote 199] Id. at 128 n.6.

[Footnote 200] Id. at 142.

[Footnote 201] Roe v. Wade, 410 U.S. 113 (1973). A companion case was Doe v. Bolton, 410 U.S. 179 (1973). The opinion by Justice Blackman was concurred in by Justices Douglas, Brennan, Stewart, Marshall, and Powell, and Chief Justice Burger. Justices White and Rehnquist dissented, id. at 171, 221, arguing that the Court should follow the traditional due process test of determining whether a law has a rational relation to a valid state objective and that so judged the statute was valid. Justice Rehnquist was willing to consider an absolute ban on abortions even when the mother's life is in jeopardy to be a denial of due process, id. at 173, while Justice White left the issue open. Id. at 223.

[Footnote 202] Roe v. Wade, 410 U.S. 113, 164 -65 (1973).

[Footnote 203] Id. at 129-47.

[Footnote 204] Id. at 156-59.

[Footnote 205] Id. at 152-53.

[Footnote 206] Id.

[Footnote 207] Id. at 152, 155-56. The ''compelling state interest'' test in equal protection cases is reviewed infra, pp. 1809-14.

[Footnote 208]   410 U.S. at 147 -52, 159-63.

[Footnote 209] Id. at 163.

[Footnote 210] Id.

[Footnote 211] Id. at 163-164. A fetus becomes ''viable'' when it is ''potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.'' Id. at 160 (footnotes omitted).

[Footnote 212] Doe v. Bolton, 410 U.S. 179 (1973).

[Footnote 213] Id. at 192-200.

[Footnote 214] Id. at 200. The clause is Article IV, Sec. 2. See supra, pp. 867-77.

[Footnote 215]   410 U.S. at 191 -92. ''[T]he medical judgment may be exercised in the light of all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient. All these factors may relate to health.'' Id. at 192. Presumably this discussion applies to the Court's ruling in Roe holding that even in the third trimester the woman may not be forbidden to have an abortion if it is necessary to preserve her health as well as her life, 410 U.S. at 163 -64, a holding which is unelaborated in the opinion. See also United States v. Vuitch, 402 U.S. 62 (1971).

[Footnote 216] Planned Parenthood v. Danforth, 428 U.S. 52 (1976). See also Bellotti v. Baird, 443 U.S. 622 (1979) (parental consent to minor's abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (imposition on doctor determination of viability of fetus and obligation to take life- saving steps); Singleton v. Wulff, 428 U.S. 106 (1976) (standing of doctors to litigate right of patients to Medicaid-financed abortions); Bigelow v. Virginia, 421 U.S. 809 (1975) (ban on newspaper ads for abortions); Connecticut v. Menillo, 423 U.S. 9 (1975) (state ban on performance of abortion by ''any person'' may constitutionally be applied to prosecute nonphysicians performing abortions).

[Footnote 217] Planned Parenthood v. Danforth, 428 U.S. 52, 67 -72 (1976). The Court recognized the husband's interests and the state interest in promoting marital harmony. But the latter was deemed not served by the requirement, and, since when the spouses disagree on the abortion decision one has to prevail, the Court thought the person who bears the child and who is the more directly affected should be the one to prevail. Justices White and Rehnquist and Chief Justice Burger dissented. Id. at 92.

[Footnote 218] Id. at 72-75. Minors have rights protected by the Constitution, but the States have broader authority to regulate their activities than those of adults. Here, the Court perceived no state interest served by the requirement that overcomes the woman's right to make her own decision; it emphasized that it was not holding that every minor, regardless of age or maturity, could give effective consent for an abortion. Justice Stevens joined the other dissenters on this part of the holding. Id. at 101. In Bellotti v. Baird, 443 U.S. 622 (1979), eight Justices agreed that a parental consent law, applied to a mature minor, found to be capable of making, and having made, an informed and reasonable decision to have an abortion, was void but split on the reasoning. Four Justices would hold that neither parents nor a court could be given an absolute veto over a mature minor's decision, while four others would hold that if parental consent is required the State must afford an expeditious access to court to review the parental determination and set it aside in appropriate cases. In H. L. v. Matheson, 450 U.S. 398 (1981), the Court upheld, as applied to an unemancipated minor living at home and dependent on her parents, a statute requiring a physician, ''if possible,'' to notify the parents or guardians of a minor seeking an abortion. The decisions leave open a variety of questions, addressed by some concurring and dissenting Justices, dealing with when it would not be in the minor's best interest to avoid notifying her parents and with the alternatives to parental notification and consent. In two 1983 cases the Court applied the Bellotti v. Baird standard for determining whether judicial substitutes for parental consent requirements permit a pregnant minor to demonstrate that she is sufficiently mature to make her own decision on abortion. Compare City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (no opportunity for case-by-case determinations); with Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983) (adequate individualized consideration).

[Footnote 219] Planned Parenthood v. Danforth, 428 U.S. 52, 81 -84 (1976). A law requiring a doctor, subject to penal sanction, to determine if a fetus is viable or may be viable and to take steps to preserve the life and health of viable fetuses was held to be unconstitutionally vague. Colautti v. Franklin, 439 U.S. 379 (1979).

[Footnote 220] Planned Parenthood v. Danforth, 428 U.S. 52, 75 -79 (1976).

[Footnote 221] City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 438 (1983); Accord, Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983). The Court in Akron relied on evidence that ''dilation and evacuation'' (D&E) abortions performed in clinics cost less than half as much as hospital abortions, and that common use of the D&E procedure had ''increased dramatically'' the safety of second trimester abortions in the 10 years since Roe v. Wade. 462 U.S. at 435 -36.

[Footnote 222] Simopoulos v. Virginia, 462 U.S. 506, 516 (1983).

[Footnote 223] City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444 -45 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

[Footnote 224] City of Akron, 462 U.S. 416, 448 -49 (1983).

[Footnote 225] City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 450 -51 (1983). But see Hodgson v. Minnesota, 497 U.S. 417 (1990) (upholding a 48-hour waiting period following notification of parents by a minor).

[Footnote 226] Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 486 -90 (1983).

[Footnote 227] Id. at 482-86, 505.

[Footnote 228] Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). See also Beal v. Doe, 432 U.S. 438 (1977) (states are not required by federal law to fund abortions); Harris v. McRae, supra, at 306-11 (same). The state restriction in Maher supra at 466, applied to nontheraputic abortions, whereas the federal law barred funding for most medically necessary abortions as well, a distinction the Court deemed irrelevant, Harris, at supra, 323, although it provided Justice Stevens with the basis for reaching different results. Id. at 349 (dissenting).

[Footnote 229] Maher, 432 U.S. at 469 & n.5; Harris, 448 U.S. at 312 -18.

[Footnote 230] Maher, 432 U.S. at 469 -74 (the quoted sentence is at 474); Harris, 448 U.S. at 321 -26. Justices Brennan, Marshall, and Blackmun dissented in both cases and Justice Stevens joined them in Harris.

[Footnote 231] Poelker v. Doe, 432 U.S. 519 (1977).

[Footnote 232] City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419 -20 (1983). In refusing to overrule Roe v. Wade, the Court merely cited the principle of stare decisis. Justice Powell's opinion of the Court was joined by Chief Justice Burger, and by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O'Connor, joined by Justices White and Rehnquist, dissented, voicing disagreement with the trimester approach and suggesting instead that throughout pregnancy the test should be the same: whether state regulation constitutes ''unduly burdensome interference with [a woman's] freedom to decide whether to terminate her pregnancy.'' 462 U.S. at 452 , 461. In the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), Justice White, joined by Justice Rehnquist, advocated overruling of Roe v. Wade, Chief Justice Burger thought Roe v. Wade had been extended to the point where it should be reexamined, and Justice O'Connor repeated misgivings expressed in her Akron dissent.

[Footnote 233]   492 U.S. 490 (1989).

[Footnote 234] The Court declined to rule on several other aspects of Missouri's law, including a preamble stating that life begins at conception, and a prohibition on the use of public funds to encourage or counsel a woman to have a nontherapeutic abortion.

[Footnote 235] Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990).

[Footnote 236] Hodgson v. Minnesota, 497 U.S. 417 (1990).

[Footnote 237]   492 U.S. at 519 -20. Dissenting Justice Blackmun, joined by Justices Brennan and Marshall, argued that this ''permissibly furthers'' standard ''completely disregards the irreducible minimum of Roe . . . that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy,'' and instead balances ''a lead weight'' (the State's interest in fetal life) against a ''feather'' (a woman's liberty interest). Id. at 555, 556 n.11.

[Footnote 238]   497 U.S. at 450 .

[Footnote 239]   492 U.S. at 521 . Concurring Justice O'Connor agreed that ''no decision of this Court has held that the State may not directly promote its interest in potential life when viability is possible.'' Id. at 528.

[Footnote 240] Id. at 519.

[Footnote 241] Id. at 529. Previously, dissenting in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 458 (1983), Justice O'Connor had suggested that the Roe trimester framework ''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.''

[Footnote 242] 112 S. Ct. 2791, 2804 (1992).

[Footnote 243] Id. at 2811.

[Footnote 244] Id. at 2821.

[Footnote 245] Id. at 2844.

[Footnote 246] City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (invalidating ''informed consent'' and 24-hour waiting period); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (invalidating informed consent requirement).

[Footnote 247] 112 S. Ct. at 2835.

[Footnote 248] The plurality Justices were joined in this part of their opinion by Justices Blackmun and Stevens.

[Footnote 249] Id. at 2831.

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