The Chief Justice's narrow conception of individual liberty and stare decisis leads him to propose the same standard of review proposed by the plurality in Webster. States may regulate abortion procedures in ways rationally related to a legitimate state interest. Williamson v. Lee Optical Co., 348 U. S. 483, 491 (1955); cf. Stanley v. Illinois, 405 U. S. 645, 651-653 (1972). Post, at 24. The Chief Justice then further weakens the test by providing an insurmountable requirement for facial challenges: petitioners must `show that no set of circumstances exists under which the [provision] would be valid.' Post, at 30, quoting Ohio v. Akron Center for Reproductive Health, 497 U. S., at 514. In short, in his view, petitioners must prove that the statute cannot constitutionally be applied to anyone. Finally, in applying his standard to the spousal-notification provision, The Chief Justice contends that the record lacks any hard evidence to support the joint opinion's contention that a large fraction of women who prefer not to notify their husbands involve situations of battered women and unreported spousal assault. Post, at 31, n. 2. Yet throughout the explication of his standard, The Chief Justice never explains what hard evidence is, how large a fraction is required, or how a battered women is supposed to pursue an as applied challenge.
Under his standard, States can ban abortion if that ban is rationally related to a legitimate state interest "a standard which the United States calls deferential, but not toothless."
Yet when pressed at oral argument to describe the teeth, the best protection that the Solicitor General could offer to women was that a prohibition, enforced by criminal penalties, with no exception for the life of the mother, could raise very serious questions. Tr. of Oral Arg. 49. Perhaps, the Solicitor General offered, the failure to include an exemption for the life of the mother would be arbitrary and capricious. Id., at 49. If, as The Chief Justice contends, the undue burden test is made out of whole cloth, the so-called arbitrary and capricious limit is the Solicitor General's new clothes.
Even if it is somehow irrational for a State to require a woman to risk her life for her child, what protection is offered for women who become pregnant through rape or incest? Is there anything arbitrary or capricious about a State's prohibiting the sins of the father from being visited upon his offspring?
But, we are reassured, there is always the protection of the democratic process. While there is much to be praised about our democracy, our country since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. A woman's right to reproductive choice is one of those fundamental liberties. Accordingly, that liberty need not seek refuge at the ballot box.
IV
In one sense, the Court's approach is worlds apart from that of The Chief Justice and Justice Scalia. And yet, in another sense, the distance between the two approaches is short "the distance is but a single vote."
I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.
Chief Justice Rehnquist, with whom Justice White, Justice Scalia, and Justice Thomas join, - concurring in the judgment in part and dissenting in part.
The joint opinion, following its newly-minted variation on stare decisis, retains the outer shell of Roe v. Wade, 410 U. S. 113 (1973), but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.
I
In ruling on this case below, the Court of Ap- peals for the Third Circuit first observed that this appeal does not directly implicate Roe; this case involves the regulation of abortions rather than their outright prohibition. 947 F. 2d 682, 687 (1991). Accordingly, the court directed its attention to the question of the standard of review for abortion regulations. In attempting to settle on the correct standard, however, the court confronted the confused state of this Court's abortion jurisprudence. After considering the several opinions in Webster v. Reproductive Health Services, supra, and Hodgson v. Minnesota, 497 U. S. 417 (1990), the Court of Appeals concluded that Justice O'Connor's undue burden test was controlling, as that was the narrowest ground on which we had upheld recent abortion regulations. 947 F. 2d, at 693-697 ( `When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds' (quoting Marks v. United States, 430 U. S. 188, 193 (1977) (internal quotation marks omitted)). Applying this standard, the Court of Appeals upheld all of the challenged regulations except the one requiring a woman to notify her spouse of an intended abortion.
In arguing that this Court should invalidate each of the provisions at issue, petitioners insist that we reaffirm our decision in Roe v. Wade, supra, in which we held unconstitutional a Texas statute making it a crime to procure an abortion except to save the life of the mother. We agree with the Court of Appeals that our decision in Roe is not directly implicated by the Pennsylvania statute, which does not prohibit, but simply regulates, abortion. But, as the Court of Appeals found, the state of our post-Roe decisional law dealing with the regulation of abortion is confusing and uncertain, indicating that a reexamination of that line of cases is in order. Unfortunately for those who must apply this Court's decisions, the reexamination undertaken today leaves the Court no less divided than beforehand. Although they reject the trimester framework that formed the underpinning of Roe, Justices O'Connor, Kennedy, and Souter adopt a revised undue burden standard to analyze the challenged regulations. We conclude, however, that such an outcome is an unjustified constitutional compromise, one which leaves the Court in a position to closely scrutinize all types of abortion regulations despite the fact that it lacks the power to do so under the Constitution.
In Roe, the Court opined that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, . . . and that it has still another important and legitimate interest in protecting the potentiality of human life. 410 U. S., at 162 (emphasis omitted). In the companion case of Doe v. Bolton, 410 U. S. 179 (1973), the Court referred to its conclusion in Roe that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. 410 U. S., at 189. But while the language and holdings of these cases appeared to leave States free to regulate abortion procedures in a variety of ways, later decisions based on them have found considerably less latitude for such regulations than might have been expected.
For example, after Roe, many States have sought to protect their young citizens by requiring that a minor seeking an abortion involve her parents in the decision. Some States have simply required notification of the parents, while others have required a minor to obtain the consent of her parents. In a number of decisions, however, the Court has substantially limited the States in their ability to impose such requirements. With regard to parental notice requirements, we initially held that a State could require a minor to notify her parents before proceeding with an abortion. H. L. v. Matheson, 450 U. S. 398
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