Justice O'Connor, the Constitution, and the Trimester Approach to Abortion: A Liberty on a Collision Course With Itself
Justice O'Connor, the Constitution, and the Trimester Approach to Abortion: A Liberty on a Collision Course With Itself
Richard F. Duncan
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RICHARD F. DUNCAN*
When the United States Supreme Court handed down its most
recent ukase on the abortion liberty in Akron v. Akron Center for
Reproductive Health, Inc.,' I, like so many people concerned with the
protection of the unborn, initially reacted with despair. The total victory of the
abortion ideology over biological reality and human compassion appeared
to be reflected in the Court's intolerance for even the most insignificant
restrictions on abortion passed by democratically elected state and local
legislatures. 2 Indeed, the Akron case, which struck down a number of
provisions of a local ordinance regulating the performance of abortions in
Akron, Ohio, seemed to declare the nearly absolute nature of the abortion
liberty (and perhaps the ultimate extension of the culture of the "me
generation") when it invalidated, as impermissibly vague under the due
process clause of the fourteenth amendment, a provision of the ordinance
requiring abortionists to "insure that the remains of the unborn child are
disposed of in a humane and sanitary manner." s Astonishingly, not only
* Associate Professor of Law, University of Nebraska College of Law.
462 U.S. 416 (1983). As Professor John T. Noonan, Jr. recently observed, the abortion
clinic referred to in the title of the Akron case was "named with Orwellian aptness."
Noonan, The Root and Branch of Roe v. Wade, 63 NEB. L. REV. 668, 675 (1984).
1 See Noonan, supra note 1, at 677.
3 Akron, 462 U.S. at 751-52. As further evidence of the proliferation of the politics of
selfinterest, consider Germaine Greer's recent argument that abortion "is not a stopgap
bedid the abortion liberty override the right to life of the prenatal human
being, it also transcended his or her entitlement to a minimally decent
interment. However, more than a year has passed since the Akron
decision, and, on reflection, it appears that the seeds of destruction of the
abortion liberty are contained in both Justice Powell's insecure majority
opinion, and Justice O'Connor's powerful dissent.
ROE V. WADE AND THE ABORTION LIBERTY
The constitutional liberty of abortion in the United States was
invented not by the Framers of our written Constitution, but rather by
Justice Blackmun and six of his colleagues on the Supreme Court in Roe v.
Wade,4 a 1973 decision that regrettably remains the law of the land. The
Roe Court held that the abortion liberty is a fundamental constitutional
right that can be restricted only on the basis of a so-called "compelling"
state interest;5 that the state's interest in protecting the health of the
mother becomes "compelling" at approximately the end of the first
trimester of pregnancy, because medical evidence existing in 1973
established that "until the end of the first trimester mortality in abortion may
be less than mortality in normal childbirth";6 and that the state's interest
in protecting the "potential life" of the unborn child becomes
"compelling" at viability, "because the fetus then presumably has the capability
of meaningful life outside the mother's womb."7
Under this trimester (or three-stage) approach to the abortion
liberty, the state is powerless to inhibit the mother's choice of abortion for
approximately the first three months of her pregnancy, because the
government's interest in protecting the life of the child and the health of the
mother is superseded by the mother's right of privacy.8 Therefore, in the
first stage of her pregnancy a woman is free to abort her unborn son or
daughter for any reason, or for no reason at all. The conscience of the
mother offers the only hope that the life of the child may be spared.9
During the second stage of the Roe formulation, beginning at
"approximately the end of the first trimester," the state may regulate the
abortion procedure in ways that are reasonably related to maternal
health.10 Thus, at least some laws governing the place and manner of
abortions are permissible at this point." Justice Blackmun's myopic view
of the Constitution, however, continues to prevent representative
government from protecting the life of the child against the will of the gravida. 2
The state's interest in preserving the life of a child was not
recognized as compelling by the Roe majority until the third stage of
pregnancy, the point of "viability."1 " According to the Court, viability occurs
when the child is "potentially able to live outside the mother's womb,
albeit with artificial aid.""' During this period, the state may act on
behalf of the child by regulating or even prohibiting abortion, "except where
[abortion] is necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother."' 5 Applying the logic of the
character Major Major from the novel Catch 22,l" the Supreme Court of
the United States concluded that not until the child was able to live on
its own outside the womb could its existence in the womb be protected by
the state. However, even this slight recognition of the state's interest in
protecting the life of the unborn child was cruelly deceptive, because
Justice Blackmun's insensitive interpretation of the Constitution demanded
that a viable child's right to existence must yield to his or her mother's
interest in "health," defined in Roe's companion case, Doe v. Bolton,'" in
terms of maternal well-being "in the light of all factors-physical,
emotional, psychological, familial, and the woman's age."' s As Professor
Noonan has observed, the abortion liberty created in Roe extends throughout
the nine months of pregnancy subject to only two restrictions-the
mother "must find a licensed clinic after month three; and, after her child
[is] viable, she must find an ibortionist who believe[s] she need[s] an
II. THE Akron CASE
The plaintiffs in Akron, an abortionist and three abortion clinics,
challenged the constitutionality of five provisions of a local ordinance,
duly enacted by the city council of the municipality, regulating the
performance of abortions. Specifically, those provisions: (1) required all
abortions taking place after the end of the first trimester to be performed in
certain accredited hospitals; (2) provided for notification of and consent
by parents prior to performance of abortions on unmarried minors; (3)
required the attending physician to make specified statements concerning
the status of the pregnancy, potential risks and complications of the
abortion procedure, and the characteristics, development, and humanity of
the unborn child from the moment of conception; (4) required a 24-hour
waiting period between the time the woman signed a form of consent and
the time the abortion was to be performed; and (5) required the
abortionist to insure that the remains of the aborted infant were "disposed of in a
humane and sanitary manner."' 0 Justice Powell and the majority in
Akron reaffirmed Roe and the trimester approach, 1 and held that each of
the challenged provisions was unconstitutional."
The dissenting opinions of today frequently become the majority
opinions of tomorrow. In the Akron case, Justice Sandra Day O'Connor
authored a powerful dissent that fell only two votes short of restoring
reverence for prenatal human life to our Constitution. Justice O'Connor's
approach to the abortion issue is two fold. First, she rejected the Roe
trimester approach as an inappropriate framework for reviewing
challenges to abortion legislation.2 3 Second, she offered a substitute test that
recognizes that (1) a challenged regulation is subject to strict
constitutional scrutiny only if it "unduly burdens the right to seek an abortion,"
and (2) the state's compelling interests in promoting maternal health and
protecting the life of the unborn child are present throughout the nine
months of pregnancy.' The startling contrast between Justice
O'Connor's bold, realistic approach to the abortion question and Justice
Powell's uncertain adherence to stare decisis and the fiction of the Roe
trimester approach is encouraging, particularly when one anticipates the
prospect of upcoming personnel changes on the antediluvian Supreme
20 Akron, 462 U.S. at 422-24.
Id. at 429 n.11.
" Id. at 452.
Id. (O'Connor, J., dissenting).
24 Id. at 453, 459 (O'Connor, J., dissenting) (emphasis added).
26 Five members of the Akron majority-Chief Justice Burger and Justices Brennan,
Marshall, Blackmun, and Powell-are older than 75 years of age.
1. The Trimester Approach
As previously noted, the trimester approach adopted by the Court in
Roe attempts to resolve the conflict between individual rights and state
interests by dividing the human gestation period into three
approximately equal stages. Those lines were drawn based upon the Court's
understanding of the state of medical knowledge existing at the time Roe
was decided. Thus, since the respective rates of mortality indicated that
abortion was safer than childbirth until the end of the first trimester, the
Court reasoned that the state's interest in regulating abortion to further
maternal health did not become compelling until the second trimester.2 6
Likewise, because the Court closed its eyes to the essential humanity of
the unborn child until the point of viability, the state's interest in acting
to protect unborn life did not become compelling until the third trimester
The basic flaw inherent in the trimester approach is that it is based
on the unrealistic premise that the state's compelling interests in
regulating and restricting abortions ripen at some arbitrary point in time.2"
Clearly, the state has a strong interest in protecting maternal health and
fetal life through the nine months of pregnancy. Although abortion may
have a lower mortality rate than childbirth during the first trimester of
pregnancy, it does not follow that unregulated abortions are as safe as
regulated ones, or that the state has no interest in ensuring that abortions
are performed as safely as possible during all stages of pregnancy.2"
Similarly, the state's interest in protecting the potential life of the unborn
child does not commence at viability; "[a]t any stage in pregnancy, there
is the potential for human life."2 Therefore, it is absurd to proscribe the
state from regulating the safety of the abortion procedure during any
particular stage of pregnancy, and, it is insensitive to compel the state to
close its eyes to the biological reality of human life in the womb prior to
the point of viability. 0
Moreover, recent developments in medical science lessening the risks
to the mother of various second-trimester abortion procedures and
pushing backward toward conception the point of fetal viability have blurred
the arbitrary lines drawn by the Supreme Court in Roe. For example,
increased use of the dilation and evacuation (D & E) procedure and the
prostaglandin technique in second-trimester abortions have resulted in a
z' Roe, 410 U.S. at 163.
27 See Akron, 463 U.S. at 459 (O'Connor, J., dissenting).
u See id.; Epstein, Substantive Due Process By Any Other Name: The Abortion Cases,
SuP. CT. REv. 159, 182-183 (1973).
" Akron, 462 U.S. at 461. (O'Connor, J., dissenting) (emphasis in original).
30 See NOONAN, supra note 7, at 13-17.
significantly lower maternal death-to-case ratio for these abortions.3
Similarly, Justice O'Connor pointed to medical evidence of fetal viability
much earlier than the 24 to 28 weeks suggested by the Court in Roe, and
stated that "[i]t is certainly reasonable to believe that fetal viability in
the first trimester of pregnancy may be possible in the not too distant
future."3 " Thus, under the Roe formulation, the state's interest in
regulating abortion to promote maternal health is continually moving forward
toward the time of birth, while its interest in acting to protect unborn life
is moving backward toward conception. As this scientific reality intrudes
upon the artificial logic of the abortion liberty, it becomes evident that
the days of the trimester approach are numbered. In the words of Justice
O'Connor, the Roe formulation is "clearly on a collision course with
Justice O'Connor's assault on the Roe rationale has disquieted
proponents of the trimester approach and sharpened the arguments of those
who have recognized its irrationality. Nevertheless, the Akron Court
clung desperately to this approach despite technological advances that
have emasculated its credibility. To see how the majority and dissenting
opinions in Akron responded to the scientific developments, let us focus
on their respective analysis of three provisions in the Akron ordinance:
the post-first-trimester hospitalization requirement, the informed consent
requirement, and the 24-hour waiting period.
Section 1870.03 of the Akron ordinance, which required all abortions
taking place after the end of the first trimester to be performed in
accredited hospitals, appeared to be a permissible second trimester maternal
health regulation under Roe v. Wade. Indeed, in Roe, Justice Blackmun
expressly referred to a second trimester hospitalization requirement as an
example of a valid state regulation." Both the district court," and the
Court of Appeals for the Sixth Circuit 6 upheld the constitutionality of
the requirement. Remarkably, the Supreme Court reversed and, without
abandoning- the trimester framework, held that section 1870.03 was an
SI See Cates, Schulz, Selik, Smith & Tyler, Second Trimester induced Abortion in the
United States, in SECOND TRIMESTER ABORTION: PERSPECTIVES AFTER A DECADE OF
EXPERIENCE 17-20 (1981); see also Akron, 462 U.S. at 436-37.
as Akron, 462 U.S. at 457 (O'Connor, J., dissenting) (emphasis added).
s Id. (O'Connor, J., dissenting).
Roe, 410 U.S. at 163.
s See Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F. Supp. 1172
(N.D. Ohio 1979), aff'd in part, rev'd in part, 651 F.2d 1198 (6th Cir. 1981), aff'd in part,
rev'd in part, 462 U.S. 416 (1983).
" See 651 F.2d 1198 (6th Cir. 1981), aff'd in part, rev'd in part, 462 U.S. 416 (1983).
unconstitutional "obstacle in the path of women seeking an abortion.''3s
Justice Powell obviously was uneasy with the intellectual contortion
that was required to uphold the trimester framework while striking down
the hospitalization requirement of the Akron ordinance. His approach
was to take cover behind the doctrine of stare decisis, while
simultaneously improvising a new amendment to the Constitution requiring state
legislators to keep current with advances in medical knowledge, to tailor
second-trimester abortion legislation to "accepted medical practice," and
to limit the effect of maternal health regulations to the period in the
trimester during which the state's health interest is furthered.3s Thus, since
present medical knowledge teaches that some second trimester abortions
may be performed safely in an outpatient abortion clinic, the
hospitalization requirement was inconsistent with the abortion liberty and therefore
invalid. 9 This holding is astonishing, because it requires the state to
confine its health regulations concerning abortion to the minimum standards
of the industry being regulated. It is as though the Court were to hold
that in matters of environmental policy representative government must
conform its regulations to the standards of the polluting industries. Yet
all this is mandated by Justice Powell's freestyle perception of our
Justice O'Connor's analysis is more realistic. The dissent pointed out
that stare decisis is not an absolute principle and, that " 'when convinced
of former error, this Court has never felt constrained to follow
precedent'" in determining constitutional questions.40 Justice O'Connor also
challenged the notion that the Constitution requires the state to
"continuously and conscientiously study contemporary medical and 9cientific
literature [in order to ensure that regulations intended to protect the
health of its citizens do not] 'depart from accepted medical practice.' "41
Simply stated, Justice O'Connor concluded that both logic and sound
constitutional theory reject any analytical approach to the abortion
question "that varies according to the 'stages' of pregnancy, where those
stages, and their concomitant standards of review, differ according to the
level of medical technology available when a particular challenge to state
Akron, 462 U.S. at 434.
Id. at 431.
a Id. at 435-37. "By preventing the performance of D & E 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 ...therefore unreasonably infringes upon a woman's constiutional right to obtain
an abortion." Id. at 438 (footnote omitted).
40 Id. at 458 (O'Connor, J., dissenting) (quoting Smith v. Allwright, 321 U.S. 649, 665
41Id. at 456 (O'Connor, J., dissenting).
Having first rejected Roe v. Wade and the trimester framework,"
Justice O'Connor proposed a realistic and workable alternative approach
for constitutional challenges to abortion legislation. First, the Court
should consider whether the legislation "unduly burdens" the woman's
right to choose abortion. If the impact of the regulation is not "unduly
burdensome," the legislation will be upheld provided it is supported by a
rational basis." Apparently, Justice O'Connor would give great weight to
the considered judgment of the state legislatures and would find an
undue burden only in situations involving "absolute obstacles or severe
limitations on the abortion decision." 4 Second, if it is determined that the
legislation is "unduly burdensome," the state would be required to justify
the restriction by demonstrating that it is supported by a compelling
state interest." However, unlike the Roe formulation, Justice O'Connor's
test recognizes that the state has compelling interests in promoting
maternal health and protecting the life of the unborn child throughout the
nine months of pregnancy."'
It appears that even an outright prohibition of abortion would be
valid under Justice O'Connor's approach, at least so long as the
proscription contained an exception for abortion in cases in which the mother's
life was threatened by the continuation of the pregnancy. Thus, under the
O'Connor view, the Akron hospitalization requirement would have been
upheld; it was not unduly burdensome because it did not interfere with
the woman's abortion decision, and it was rationally related to the state's
legitimate interest in promoting maternal health."
2. Informed Consent
Section 1870.06(B) of the Akron ordinance was designed to ensure
that women engage in rational self-direction when deciding whether to
abort an unborn child. Prior to performing an abortion on a pregnant
woman, the attending physician was required to make a number of
specified statements to the woman concerning the status of her pregnancy, the
potential risks and complications of abortion, and the characteristics,
development, and humanity from the moment of conception of her unborn
child. Additionally, section 1870.06(C) required the attending physician
to advise the woman of the "particular risks" associated with her own
Id. at 452 (O'Connor, J., dissenting).
4aId. at 453-54 (O'Connor, J., dissenting).
44 Id. at 463-65 (O'Connor, J., dissenting).
" Id. at 463-64 (O'Connor, J., dissenting).
40 Id. at 464 (O'Connor, J., dissenting).
"' Id. at 459 (O'Connor, J., dissenting).
48 Id. at 466-67 (O'Connor, J., dissenting).
pregnancy and the abortion technique to be performed on her.4 9
Justice Powell held that section 1870.06(B) was an invalid obstacle in
the path of the abortion liberty inasmuch as it intruded upon the
discretion of the attending physician and because "much of the information
required is designed not to inform the woman's consent but rather to
persuade her to withhold it altogether." 50 Moreover, the provision requiring
the physician to inform the woman that her unborn child is a human life
from the moment of conception was inconsistent with Roe in that it
adopted a particular "theory of when life begins to justify its regulation
Section 1870.06(C) posed a different question; even Justice Powell
had to admit that the required information concerning the risks of a
particular case was clearly related to the state's legitimate interest in
promoting maternal health and informed consent. 5 However, Justice
Powell's view of the Constitution nevertheless was offended by this provision;
because it unreasonably required the disclosures to be made by the
attending physician rather than by some other qualified individual."
It is astonishing that Justice Powell could discern all of this in our
written Constitution-not only does the right to an abortion prevent the
state from prohibiting the destruction of innocent human life, it also acts
as a censor against the state's efforts to have the truth about abortion and
human life spoken to a female citizen engaged in what well may be the
most important decision of her life." Surely the state has a sufficient
interest in the well-being of unborn children about to be put to death to
support its attempt to intercede for mercy on their behalf.
Under Justice O'Connor's approach to the abortion liberty, the
informed consent provisions would have been upheld." They did not
impose an "undue burden or drastic limitation" on the abortion decision,
and they were clearly related to the state's legitimate interest in ensuring
that the woman's decision of childbirth or abortion is made
intelligently. " '
" Id. at 423 n.5.
" Id. at 444.
' See id. at 446.
" See id. at 448.
" See Noonan, supra note 7, at 13.
" See Akron, 462 U.S. at 471-72 (O'Connor, J., dissenting). Justice O'Connor did not
analyze the constitutionality of the most controversial provisions, because the City of Akron
had conceded their unconstitutionality in the proceedings before the lower courts. However,
they would appear to be valid under her two-part framework for analyzing challenges to
abortion legislation. See id. at 453, 459.
" See id. at 470-72 (O'Connor, J., dissenting). However, because the plaintiffs in Akron did
not raise first amendment objections to the legislation, Justice O'Connor did not consider
The 24-Hour Waiting Period
Section 1870.07 of the Akron ordinance provided that no abortion
could be performed until 24 hours had elapsed from the time the
pregnant woman signed a form of consent. 7 This requirement was designed to
allow the woman a brief opportunity for reflection before making a final
decision concerning the handling of her pregnancy. In light of the grave
and irreparable consequences of abortion for the being in the womb
facing extinction, a 24-hour waiting period would seem to be only a small
burden on the woman's freedom. Surely if the abortion liberty were not
absolute, this provision ought to have been valid. Moreover, it is at least
arguable that the requirement actually enhances the woman's exercise of
her right to decide the outcome of her pregnancy, because it allows her to
consider carefully the information provided her by (or on behalf of) the
attending physician. However, Justice Powell recoiled in horror when he
discovered that this small concession on behalf of unborn life and
informed consent would increase the cost of the abortion "by requiring the
woman to make two separate trips to the abortion facility," and held that
the "arbitrary and inflexible waiting period" was violative of the
Constitution." The state was without power to require even a short delay in a
woman's decision to abort.59
Again, under Justice O'Connor's approach, the waiting period would
have been upheld. 60 The dissent found that the increased costs resulting
from the requirement were not unduly burdensome, and that, in any
event, "the state's compelling interests in maternal physical and mental
health and protection of fetal life clearly justify the waiting period."'
If abortion is not wrong, nothing is wrong.6" Friends of the unborn
should not be discouraged by the Supreme Court's most recent decision
in the Akron case. Although the case reaffirms Roe v. Wade and appears
to signify the Court's acceptance of a nearly absolute abortion liberty, it
whether the provisions violated the first amendment by requiring the physician to
communicate a particular ideology to the pregnant woman. Id. at 472 n.16 (O'Connor, J.,
57 Id. at 460 n.6. This waiting period was not required for abortions involving medical
emergencies. See id. at 449 n.42.
" Id. at 450.
'0 Id. at 473-74 (O'Connor, J., dissenting).
61Id. (O'Connor, J., dissenting).
42 Cf. Steiner, Slavery, Socialism, and Private Property, in NoMos XXII: PRoPERTY 244
(1980) (quoting Abraham Lincoln's perception of slavery: "[i]f slavery is not wrong, nothing
also introduces a new voice for life on the Supreme Court, Justice Sandra
Day O'Connor. The contrast between Justice O'Connor's powerful,
realistic, and articulate dissent and Justice Powell's weak, myopic, and illogical
majority opinion is startling. Clearly, the days of the trimester approach
are numbered, and Justice O'Connor has proposed a thoughtful
alternative that recognizes the State's strong interests in protecting maternal
health and unborn human life throughout the nine months of pregnancy.
I believe we are near the end of our long wait to see reverence for
prenatal human life restored to the Constitution.