462 U.S. 416 (1983), 81-746, City of Akron v. Akron Center For Reproductive Health, Inc.

Docket Nº:Nos. 81-746, 81-1172.
Citation:462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687
Case Date:June 15, 1983
Court:United States Supreme Court

Page 416

462 U.S. 416 (1983)

103 S.Ct. 2481, 76 L.Ed.2d 687

CITY OF AKRON, Petitioner,






Nos. 81-746, 81-1172.

United States Supreme Court.

June 15, 1983

Argued Nov. 30, 1982.

[103 S.Ct. 2485] Syllabus[*]


An Akron, Ohio, ordinance, inter alia, (1) requires all abortions performed after the first trimester of pregnancy to be performed in a hospital (§ 1870.03); (2) prohibits a physician from performing an abortion on an unmarried minor under the age of 15 unless he obtains the consent of one of her parents or unless the minor obtains an order from a court having jurisdiction over her that the abortion be performed (§ 1870.05(B)); (3) requires that the attending physician inform his patient of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide her with assistance and information with respect to birth control, adoption, and childbirth (§ 1870.06(B)), and also inform her of the particular risks associated with her pregnancy and the abortion technique to be employed (§ 1870.06(C)); (4) prohibits a physician from performing an abortion until 24 hours after the pregnant woman signs a consent form (§ 1870.07); and (5) requires physicians performing abortions to ensure that fetal remains are disposed of in a "humane and sanitary manner" (§ 1870.16). A violation of the ordinance is punishable as a misdemeanor. Respondents and cross-petitioners filed an action in Federal District Court against petitioners and cross-respondents, challenging the ordinance. The District Court invalidated §§ 1870.05(B), 1870.06(B), and 1870.16, but upheld §§ 1870.03, 1870.06(C), and 1870.07. The Court of Appeals affirmed as to §§ 1870.03, 1870.05(B), 1870.06(B), and 1870.16, but reversed as to §§ 1870.06(C) and 1870.07.


1. Section 1870.03 is unconstitutional. Pp. 2493-2497.

(a) While a State's interest in health regulation becomes compelling at approximately the end of the first trimester, the State's regulation may be upheld only if it is reasonably designed to further that interest. [103 S.Ct. 2486] If during a substantial portion of the second trimester the State's regulation

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departs from accepted medical practice, it may not be upheld simply because it may be reasonable for the remaining portion of the trimester. Rather, the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest may be furthered. Pp. 2494-2495.

(b) It cannot be said that the lines drawn in § 1870.03 are reasonable. By preventing the performance of dilatation-and-evacuation abortions in an appropriate nonhospital setting, Akron has imposed a heavy and unnecessary burden on women's access to a relatively inexpensive, otherwise accessible, and safe abortion procedure. Section 1870.03 has the effect of inhibiting the vast majority of abortions after the first trimester and therefore unreasonably infringes upon a woman's constitutional right to obtain an abortion. Pp. 2495-2497.

2. Section 1870.05(B) is unconstitutional as making a blanket determination that all minors under the age of 15 are too immature to make an abortion decision or that an abortion never may be in the minor's best interests without parental approval. Under circumstances where the Ohio statute governing juvenile proceedings does not mention minors' abortions nor suggest that the Ohio Juvenile Court has authority to inquire into a minor's maturity or emancipation, § 1870.05(B), as applied in juvenile proceedings, is not reasonably susceptible of being construed to create an opportunity for case-by-case evaluations of the maturity of pregnant minors. Pp. 2497-2499.

3. Sections 1870.06(B) and 1870.06(C) are unconstitutional. Pp. 2499-2503.

(a) The validity of an informed consent requirement rests on the State's interest in protecting the pregnant woman's health. But this does not mean that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. A State may not adopt regulations designed to influence the woman's informed choice between abortion or childbirth. Pp. 2499-2500.

(b) Section 1870.06(B) attempts to extend the State's interest in ensuring "informed consent" beyond permissible limits, and intrudes upon the discretion of the pregnant woman's physician. While a State may require a physician to make certain that his patient understands the physical and emotional implications of having an abortion, § 1870.06(B) goes far beyond merely describing the general subject matter relevant to informed consent. By insisting upon recitation of a lengthy and inflexible list of information, the section unreasonably has placed obstacles in the path of the physician. Pp. 2500-2501.

(c) With respect to § 1870.06(C)'s requirement that the "attending physician" must inform the woman of the specified information, it is unreasonable for a State to insist that only a physician is competent to

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provide the information and counseling relevant to informed consent. Pp. 2501-2503.

4. Section 1870.07 is unconstitutional. Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting period. There is no evidence that the abortion procedure will be performed more safely. Nor does it appear that the State's legitimate concern that the woman's decision be informed is reasonably served by requiring a 24-hour delay as a matter of course. P. 2503.

5. Section 1870.16 violates the Due Process Clause by failing to give a physician fair notice that his contemplated conduct is forbidden. Pp. 2503-2504.

651 F.2d 1198 (6th Cir., 1981), affirmed in part and reversed in part.


Alan G. Segedy argued the cause for petitioner in No. 81-746 and respondent in No. 81-1172. With him on the briefs was Robert D. Pritt. Mr. Segedy andRobert A. Destro filed a brief for Seguin et al., respondents under this Court's Rule 19.6, in support of petitioner in No. 81-746 and respondent in No. 81-1172.

Solicitor General Lee argued the cause for the United States as amicus curiae. With him on the brief were Assistant Attorney General McGrath andDeputy Solicitor General Geller.

[103 S.Ct. 2487] Stephan Landsman argued the cause for respondents in No. 81-746 and petitioners in No. 81-1172. With him on the briefs were Janet Benshoof, Suzanne M. Lynn, Nan D. Hunter, Lois J. Lipton, and Gordon Beggs.d

d Briefs of amici curiae urging reversal were filed by Delores V. Horan for Feminists for Life; and by Lynn D. Wardle for the United Families Foundation et al.

Briefs of amici curiae urging affirmance were filed by Bruce J. Ennis, Jr., and Donald N. Bersoff for the American Psychological Association; and bySylvia A. Law, Nadine Taub, and Ellen J. Winner for the Committee for Abortion Rights and Against Sterilization Abuse et al.

Briefs of amici curiae were filed by M. Carolyn Cox and Lynn Bregman for the American College of Obstetricians and Gynecologists et al.; by David B. Hopkins for the American Public Health Association; by Dennis J. Horan, Victor G. Rosenblum, Patrick A. Trueman, and Thomas J. Marzen for Americans United for Life for California Women Lawyers et al.; by Charles E. Rice for the Catholic League for Religious and Civil Rights; by Rhonda Copelon for Certain Religious Organizations; by Jack R. Bierig for the College of American Pathologists; byRonald J. Suster for Lawyers for Life; by Alan Ernest for the Legal Defense Fund for Unborn Children; by Judith Levin for the National Abortion Federation; by Jack Greenberg, James M. Nabrit III, and Judith Reed for the NAACP Legal Defense and Educational Fund, Inc.; by Phyllis N. Segal, Judith I. Avner, and Jemera Rone for the National Organization for Women et al.; by Eve W. Paul and Dara Klassel for the Planned Parenthood Federation of America, Inc., et al.; by James Arthur Gleason for Womankind, Inc.; by Nancy Reardan for Women Lawyers of Sacramento et al; and by Susan Frelich Appleton and Paul Brest for Certain Law Professors.

Alan G. Segedy, Akron, Ohio, for City of Akron.

Sol. Gen. Rex E. Lee, Washington, D.C., for the U.S. as amicus curiae, by special leave of Court.

[103 S.Ct. 2487] Stephan A. Landsman, Cleveland-Marshall College of Law, Cleveland State University, Cleveland, Ohio, for Akron Center for Reproductive Health, Inc., et al.


Page 419

Justice POWELL delivered the opinion of the Court.

In this litigation we must decide the constitutionality of several provisions of an ordinance enacted by the city of Akron, Ohio, to regulate the performance of abortions. Today we also review abortion regulations enacted by the State of Missouri, see Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 75 L.Ed.2d ----, and by the State of Virginia, see Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 75 L.Ed.2d ----.

These cases come to us a decade after we held in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman's right to decide whether to terminate her pregnancy. Legislative responses to the Court's decision have required us on several occasions, and again today, to define the limits of a State's authority to regulate the performance of abortions. And arguments continue to be made, in these cases as well, that we erred in interpreting the Constitution. Nonetheless, the doctrine of

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stare decisis, while perhaps never entirely persuasive on a constitutional question, is...

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