Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/abort4.asc

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Justice Stevens, concurring in part and dissenting in part.

 The portions of the Court's opinion that I have joined
are more important than those with which I disagree.  I shall
therefore first comment on significant areas of agreement, and
then explain the limited character of my disagreement.

I

 The Court is unquestionably correct in concluding that
the doctrine of stare decisis has controlling significance in a
case of this kind, notwithstanding an individual justice's
concerns about the merits.  The central holding of Roe v. Wade,
410 U. S. 113 (1973), has been a part of our law for almost two
decades.  Planned Parenthood of Central Mo. v. Danforth, 428 U.
S. 52, 101 (1976) (Stevens, J., concurring in part and dissenting
in part).  It was a natural sequel to the protection of
individual liberty established in Griswold v.  Connecticut, 381
U. S. 479 (1965).  See also Carey v.  Population Services Int'l,
431 U. S. 678, 687, 702 (1977) (White, J., concurring in part and
concurring in result).  The societal costs of overruling Roe at
this late date would be enormous.  Roe is an integral part of a
correct understanding of both the concept of liberty and the
basic equality of men and women.

 Stare decisis also provides a sufficient basis for my
agreement with the joint opinion's reaffirmation of Roe's
post-viability analysis.  Specifically, I accept the proposition
that [i]f 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.  410 U. S., at 163-164; see ante, at 36-37.

 I also accept what is implicit in the Court's analysis,
namely, a reaffirmation of Roe's explanation of why the State's
obligation to protect the life or health of the mother must take
precedence over any duty to the unborn.  The Court in Roe
carefully considered, and rejected, the State's argument that the
fetus is a `person' within the language and meaning of the
Fourteenth Amendment.  410 U. S., at 156.  After analyzing the
usage of person in the Constitution, the Court concluded that
that word has application only postnatally.  Id., at 157.
Commenting on the contingent property interests of the unborn
that are generally represented by guardians ad litem, the Court
noted:  Perfection of the interests involved, again, has
generally been contingent upon live birth.  In short, the unborn
have never been recognized in the law as persons in the whole
sense.  Id., at 162.  Accordingly, an abortion is not the
termination of life entitled to Fourteenth Amendment protection.
Id., at 159.  From this holding, there was no dissent, see id.,
at 173; indeed, no member of the Court has ever questioned this
fundamental proposition.  Thus, as a matter of federal
constitutional law, a developing organism that is not yet a
person does not have what is sometimes described as a right to
life.  This has been and, by the Court's holding today, remains a

fundamental premise of our constitutional law governing
reproductive autonomy.

II

 My disagreement with the joint opinion begins with its
understanding of the trimester framework established in Roe.
Contrary to the suggestion of the joint opinion, ante, at 33, it
is not a contradiction to recognize that the State may have a
legitimate interest in potential human life and, at the same
time, to conclude that that interest does not justify the
regulation of abortion before viability (although other
interests, such as maternal health, may).  The fact that the
State's interest is legitimate does not tell us when, if ever,
that interest outweighs the pregnant woman's interest in personal
liberty.  It is appropriate, therefore, to consider more
carefully the nature of the interests at stake.

 First, it is clear that, in order to be legitimate, the
State's interest must be secular; consistent with the First
Amendment the State may not promote a theological or sectarian
interest.  See Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U. S. 747, 778 (1986) (Stevens, J.,
concurring); see generally Webster v. Reproductive Health
Services, 492 U. S. 490, 563-572 (1989) (Stevens, J., concurring
in part and dissenting in part).  Moreover, as discussed above,
the state interest in potential human life is not an interest in
loco parentis, for the fetus is not a person.

 Identifying the State's interests "which the States
rarely articulate with any precision "makes clear that the
interest in protecting potential life is not grounded in the
Constitution.  It is, instead, an indirect interest supported by
both humanitarian and pragmatic concerns.  Many of our citizens
believe that any abortion reflects an unacceptable disrespect for
potential human life and that the performance of more than a
million abortions each year is intolerable; many find
third-trimester abortions performed when the fetus is approaching
personhood particularly offensive.  The State has a legitimate
interest in minimizing such offense.  The State may also have a
broader interest in expanding the population, believing society
would benefit from the services of additional productive citizens
"or that the potential human lives might include the occasional
Mozart or Curie."  These are the kinds of concerns that comprise
the State's interest in potential human life.

 In counterpoise is the woman's constitutional interest in
liberty.  One aspect of this liberty is a right to bodily
integrity, a right to control one's person.  See e.g., Rochin v.
California, 342 U.S. 165 (1952); Skinner v. Oklahoma, 316 U. S.
535 (1942).  This right is neutral on the question of abortion:
The Constitution would be equally offended by an absolute
requirement that all women undergo abortions as by an absolute
prohi- bition on abortions.  Our whole constitutional heritage
rebels at the thought of giving government the power to control
men's minds.  Stanley v.  Georgia, 394 U. S. 557, 565 (1969).
The same holds true for the power to control women's bodies.

/* Stanley vs. Georgia being the case in which the Supreme Court
held that the private possession of obscene material (other than
child pronography) by adults in the privacy of their homes, is
legal. */


 The woman's constitutional liberty interest also involves
her freedom to decide matters of the highest privacy and the most
personal nature.  Cf.  Whalen v. Roe, 409 U. S. 589, 598-600
(1977).  A woman considering abortion faces a difficult choice
having serious and personal consequences of major importance to
her own future "perhaps to the salvation of her own immortal
soul."  Thornburgh, 476 U. S., at 781.  The authority to make
such traumatic and yet empowering decisions is an element of
basic human dignity.  As the joint opinion so eloquently
demonstrates, a woman's decision to terminate her pregnancy is
nothing less than a matter of conscience.

 Weighing the State's interest in potential life and the
woman's liberty interest, I agree with the joint opinion that the
State may `expres[s] a preference for normal childbirth,' that
the State may take steps to ensure that a woman's choice is
thoughtful and informed, and that States are free to enact laws
to provide a reasonable framework for a woman to make a decision
that has such profound and lasting meaning.  Ante, at 30.
Serious questions arise, however, when a State attempts to
persuade the woman to choose childbirth over abortion.  Ante, at
36.  Decisional autonomy must limit the State's power to inject
into a woman's most personal deliberations its own views of what
is best.  The State may promote its preferences by funding
childbirth, by creating and maintaining alternatives to abortion,
and by espousing the virtues of family; but it must respect the
individual's freedom to make such judgments.

 This theme runs throughout our decis