Thornburgh v. American College of Obstetricians and Gynecologists/Dissent Burger

Chief Justice Burger, dissenting.

I agree with much of Justice White's and Justice O'Connor's dissents. In my concurrence in the companion case to Roe v. Wade, 410 U.S. 113, in 1973, I noted:

"I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand." Doe v. Bolton, 410 U.S. 179, 208 (1973).

Later, in Maher v. Roe, 432 U.S. 464, 481 (1977), I stated my view that

"[t]he Court's holdings in Roe...and Doe v. Bolton...simply require that a State not create an absolute barrier to a woman's decision to have an abortion."

I based my concurring statements in Roe and Maher on the principle expressed in the Court's opinion in Roe that the right to an abortion "is not unqualified and must be considered against important state interests in regulation." 410 U.S., at 154-155. In short, every Member of the Roe Court rejected the idea of abortion on demand. The Court's opinion today, however, plainly undermines that important principle, and I regretfully conclude that some of the concerns of the dissenting Justices in Roe, as well as the concerns I expressed in my separate opinion, have now been realized.

The extent to which the Court has departed from the limitations expressed in Roe is readily apparent. In Roe, the Court emphasized

"that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman...." Id., at 162.

Yet today the Court astonishingly goes so far as to say that the State may not even require that a woman contemplating an abortion be provided with accurate medical information concerning the risks inherent in the medical procedure which she is about to undergo and the availability of state-funded alternatives if she elects not to run those risks. Can anyone doubt that the State could impose a similar requirement with respect to other medical procedures? Can anyone doubt that doctors routinely give similar information concerning risks in countless procedures having far less impact on life and health, both physical and emotional than an abortion, and risk a malpractice lawsuit if they fail to do so?

Yet the Court concludes that the State cannot impose this simple information-dispensing requirement in the abortion context where the decision is fraught with serious physical, psychological, and moral concerns of the highest order. Can it possibly be that the Court is saying that the Constitution forbids the communication of such critical information to a woman? We have apparently already passed the point at which abortion is available merely on demand. If the statute at issue here is to be invalidated, the "demand" will not even have to be the result of an informed choice.

The Court in Roe further recognized that the State "has still another important and legitimate interest" which is "separate and distinct" from the interest in protecting maternal health, i. e., an interest in "protecting the potentiality of human life." Ibid. The point at which these interests become "compelling" under Roe is at viability of the fetus. Id., at 163. Today, however, the Court abandons that standard and renders the solemnly stated concerns of the 1973 Roe opinion for the interests of the states mere shallow rhetoric. The statute at issue in this case requires that a second physician be present during an abortion performed after viability, so that the second physician can "take control of the child and...provide immediate medical care...taking all reasonable steps necessary, in his judgment, to preserve the child's life and health." 18 Pa. Cons. Stat. § 3210(c) (1982).

Essentially this provision simply states that a viable fetus is to be cared for, not destroyed. No governmental power exists to say that a viable fetus should not have every protection required to preserve its life. Undoubtedly the Pennsylvania Legislature added the second-physician requirement on the mistaken assumption that this Court meant what it said in Roe concerning the "compelling interest" of the states in potential life after viability.

The Court's opinion today is but the most recent indication of the distance traveled since Roe. Perhaps the first important road marker was the Court's holding in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), in which the Court held (over the dissent of Justice White joined by Justice Rehnquist and myself) that the State may not require that minors seeking an abortion first obtain parental consent. Parents, not judges or social workers, have the inherent right and responsibility to advise their children in matters of this sensitivity and consequence. Can one imagine a surgeon performing an amputation or even an appendectomy on a 14-year-old girl without the consent of a parent or guardian except in an emergency situation?

Yet today the Court goes beyond Danforth by remanding for further consideration of the provisions of Pennsylvania's statute requiring that a minor seeking an abortion without parental consent petition the appropriate court for authorization. Even if I were to agree that the Constitution requires that the states may not provide that a minor receive parental consent before undergoing an abortion, I would certainly hold that judicial approval may be required. This is in keeping with the longstanding common-law principle that courts may function in loco parentis when parents are unavailable or neglectful, even though courts are not very satisfactory substitutes when the issue is whether a 12-, 14-, or 16-year-old unmarried girl should have an abortion. In my view, no remand is necessary on this point because the statutory provision in question is constitutional.

In discovering constitutional infirmities in state regulations of abortion that are in accord with our history and tradition, we may have lured judges into "roaming at large in the constitutional field." Griswold v. Connecticut, 381 U.S. 479, 502 (1965) (Harlan, J., concurring). The soundness of our holdings must be tested by the decisions that purport to follow them. If Danforth and today's holding really mean what they seem to say, I agree we should reexamine Roe.