After the decision in Roe v. Wade, 410 U.S. 113 (1973), there were a myriad of legislative responses to Roe’s holding that the right of privacy encompasses a woman’s right to decide whether to terminate her pregnancy. In these responses the states were attempting to determine which restrictions on or regulations of abortion were constitutionally valid. In 1982, the Pennsylvania Legislature enacted the abortion legislation that is the subject of Thornburgh v. American College of Obstetricians and Gynecologists. The plaintiffs, a variety of groups and persons interested in limiting restrictions on abortions, brought suit to enjoin the enforcement of the act.
Five members of the Court, with four dissenting, held that the six statutory provisions at issue were unconstitutional. In doing so the Court reaffirmed its holdings in Roe v. Wade and Akron Center for Reproductive Health, Inc. v. City of Akron (462 U.S. 416, 1983). The state of Pennsylvania defended the statutory provisions on the ground that, as allowed by these cases, the provisions were designed to protect maternal health and/or potential life. The Court, however, found that under the guise of protecting maternal health and potential life the state was attempting to intimidate women into continuing their pregnancies and such is not allowed by the Constitution.
The first two provisions that the Court invalidated concerned the giving of informed consent after the woman was provided with a variety of printed materials. The Court explained that the requirement that a woman’s consent be voluntary and informed is proper and constitutional, but the state may not require the delivery of information designed to influence the woman’s choice between abortion and childbirth. The information that the Pennsylvania statute required to be given was designed to do this and therefore was unconstitutional.
The third and fourth provisions required that a physician report the basis for his determination that a fetus is not viable. The required report was to be detailed and to include personal information regarding the woman. The Court indicated that recordkeeping and reporting designed to preserve maternal health is acceptable; however, the Pennsylvania statute went far beyond this goal. The Court felt that with such a provision in place a woman would be more reluctant to obtain an abortion because her identity might become public knowledge. Such a burden on the woman’s right to choose is unacceptable.
The fifth provision set forth two independent requirements for postviability abortions. The first requirement demanded that a physician exercise the degree of care that he or she would be required to exercise if delivering a child as opposed to aborting it. The second requirement mandates that a physician use an abortion technique that provides the best opportunity for the unborn child to be aborted alive, unless such a technique would present a significantly greater medical risk to the pregnant woman. The Court invalidated both requirements because they required a trade-off between the woman’s health and fetal survival and failed to require that the health of the pregnant woman be the physician’s prime consideration.
Finally, the sixth provision required that a second physician be present during an abortion if there was a possibility that the unborn child could be viable. The second physician was to take control of the child and try to preserve the child’s life and health. The Court found the provision to be unconstitutional because it did not contain an express or implied exception for situations when the woman’s health was endangered by delay in the arrival of the second physician. JANET
Cases and Statutes Cited
See also Abortion; Privacy