Facts of the Case

Provided by Oyez

The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.


Questions

  1. Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade?

Conclusions

  1. In a bitter 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. In a rare step, the opinion for the Court was crafted and authored by three justices: O'Connor, Kennedy, and Souter.

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Note from the Editor:  The Federalist Society takes no positions on particular legal and public...

Is It Time to Revisit the Constitutionality of Unauthorized Practice of Law Rules?

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Federalist Society Review, Volume 20

Note from the Editor:  The Federalist Society takes no positions on particular legal and public...

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On June 24, 2022, the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization. In...

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Please join the Federalist Society's Practice Groups for a virtual event on Dobbs v. Jackson...