JUSTICE O’CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, dissenting.
In Roe v. Wade, 410 U. S. 113 (1973), the Court held that the
right of privacy… founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
Id. at 410 U. S. 153. The parties in these cases have not asked the Court to reexamine the validity of that holding, and the court below did not address it. Accordingly, the Court does not reexamine its previous holding. Nonetheless, it is apparent from the Court’s opinion that neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework 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 regulation occurs. The Court’s analysis of the Akron regulations is inconsistent both with the methods of analysis employed in previous cases dealing with abortion, and with the Court’s approach to fundamental rights in other areas.
Our recent cases indicate that a regulation imposed on “a lawful abortion is not unconstitutional unless it unduly burdens the right to seek an abortion.'” Maher v. Roe, 432 U. S. 464, 432 U. S. 473 (1977) (quoting Bellotti v. Baird, 428 U. S. 132, 428 U. S. 147 (1977) ( Bellotti I )). See also Harris v. McRae, 448 U. S. 297, 448 U. S. 314 (1980). In my view, this “unduly burdensome” standard should be applied to the challenged regulations throughout the entire pregnancy without reference to the particular “stage” of pregnancy involved. If the particular regulation does not “unduly burde[n]” the fundamental right, Maher, supra, at 432 U. S. 473, then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose. Irrespective of what we may believe is wise or prudent policy in this difficult area,
the Constitution does not constitute us as ‘Platonic Guardians,’ nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, ‘wisdom,’ or ‘common sense.’
Plyler v. Doe, 457 U. S. 202, 457 U. S. 242 (1982) (BURGER, C.J., dissenting).
I
The trimester or “three-stage” approach adopted by the Court in Roe, [ Footnote 2/1 ] and, in a modified form, employed by the Court to analyze the regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman’s right and the State’s interests. The decision of the Court today graphically illustrates why the trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.
As the Court indicates today, the State’s compelling interest in maternal health changes as medical technology changes, and any health regulation must not “depart from accepted medical practice.” Ante at 462 U. S. 431. [ Footnote 2/2 ] In applying this standard, the Court holds that “the safety of second trimester abortions has increased dramatically” since 1973, when Roe was decided. Ante at 462 U. S. 435 -436 (footnote omitted). Although a regulation such as one requiring that all second trimester abortions be performed in hospitals “had strong support” in 1973 “as a reasonable health regulation,” ante at 462 U. S. 435, this regulation can no longer stand because, according to the Court’s diligent research into medical and scientific literature, the dilation and evacuation (D&E;) procedure, used in 1973 only for first trimester abortions, “is now widely and successfully used for second trimester abortions.” Ante at 462 U. S. 436 (footnote omitted). Further, the medical literature relied on by the Court indicates that the D&E; procedure may be performed in an appropriate nonhospital setting for “at least… the early weeks of the second trimester….” Ante at 462 U. S. 437. The Court then chooses the period of 16 weeks of gestation as that point at which D&E; procedures may be performed safely in a nonhospital setting, and thereby invalidates the Akron hospitalization regulation.
It is not difficult to see that, despite the Court’s purported adherence to the trimester approach adopted in Roe, the lines drawn in that decision have now been “blurred” because of what the Court accepts as technological advancement in the safety of abortion procedure. The State may no longer rely on a “bright line” that separates permissible from impermissible regulation, and it is no longer free to consider the second trimester as a unit and weigh the risks posed by all abortion procedures throughout that trimester. [ Footnote 2/3 ] Rather, the State must continuously and conscientiously study contemporary medical and scientific literature in order to determine whether the effect of a particular regulation is to “depart from accepted medical practice” insofar as particular procedures and particular periods within the trimester are concerned. Assuming that legislative bodies are able to engage in this exacting task, [ Footnote 2/4 ] it is difficult to believe that our Constitution requires that they do it as a prelude to protecting the health of their citizens. It is even more difficult to believe that this Court, without the resources available to those bodies entrusted with making legislative choices, believes itself competent to make these inquiries and to revise these standards every time the American College of Obstetricians and Gynecologists (ACOG) or similar group revises its views about what is and what is not appropriate medical procedure in this area. Indeed, the ACOG Standards on which the Court relies were changed in 1982, after trial in the present cases. Before ACOG changed its Standards in 1982, it recommended that all mid-trimester abortions be performed in a hospital. See 651 F.2d 1198, 1209 (CA6 1981). As today’s decision indicates, medical technology is changing, and this change will necessitate our continued functioning as the Nation’s
ex officio medical board, with powers to approve or disapprove medical and operative practices and standards throughout the United States.
Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 428 U. S. 99 (1976) (WHITE, J., concurring in part and dissenting in part).
Just as improvements in medical technology inevitably will move forward the point at which the State may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the State may proscribe abortions except when necessary to preserve the life and health of the mother.
In 1973, viability before 28 weeks was considered unusual. The 14th edition of L. Hellman & J. Pritchard, Williams Obstetrics (1971), on which the Court relied in Roe for its understanding of viability, stated, at 493, that “[a]ttainment of a [fetal] weight of 1,000 g [or a fetal age of approximately 28 weeks’ gestation] is… widely used as the criterion of viability.” However, recent studies have demonstrated increasingly earlier fetal viability. [ Footnote 2/5 ] It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future. Indeed, the Court has explicitly acknowledged that Roe left the point of viability “flexible for anticipated advancements in medical skill.” Colautti v. Franklin, 439 U. S. 379, 439 U. S. 387 (1979).
[W]e recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term.
Danforth, supra, at 428 U. S. 64.
The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception. Moreover, it is clear that the trimester approach violates the fundamental aspiration of judicial decisionmaking through the application of neutral principles “sufficiently absolute to give them roots throughout the community and continuity over significant periods of time….” A. Cox, The Role of the Supreme Court in American Government 114 (1976). The Roe framework is inherently tied to the state of medical technology that exists whenever particular litigation ensues. Although legislatures are better suited to make the necessary factual judgments in this area, the Court’s framework forces legislatures, as a matter of constitutional law, to speculate about what constitutes “accepted medical practice” at any given time. Without the necessary expertise or ability, courts must then pretend to act as science review boards and examine those legislative judgments.
The Court adheres to the Roe framework because the doctrine of stare decisis “demands respect in a society governed by the rule of law.” Ante at 462 U. S. 420. Although respect for stare decisis cannot be challenged, “this Court’s considered practice [is] not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases.” Glidden Co. v. Zdanok, 370 U. S. 530, 370 U. S. 543 (1962). Although we must be mindful of the
desirability of continuity of decision in constitutional questions… when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.
Smith v. Allwright, 321 U. S. 649, 321 U. S. 665 (1944) (footnote omitted).
Even assuming that there is a fundamental right to terminate pregnancy in some situations, there is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today on the basis of stare decisis. For the reasons stated above, that framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated.
II
The Court in Roe correctly realized that the State has important interests “in the areas of health and medical standards” and that
[t]he State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.
410 U.S. at 410 U. S. 149 -150. The Court also recognized that the State has ” another important and legitimate interest in protecting the potentiality of human life.” Id. at 410 U. S. 162 (emphasis in original). I agree completely that the State has these interests, but, in my view, the point at which these interests become compelling does not depend on the trimester of pregnancy. Rather, these interests are present throughout pregnancy.
This Court has never failed to recognize that “a State may properly assert important interests in safeguarding health [and] in maintaining medical standards.” Id. at 410 U. S. 154. It cannot be doubted that, as long as a state statute is within
the bounds of reason and [does not] assum[e] the character of a merely arbitrary fiat…, [then] [t]he State… must decide upon measures that are needful for the protection of its people….
Purity Extract and Tonic Co. v. Lynch, 226 U. S. 192, 226 U. S. 204 -205 (1912). “There is nothing in the United States Constitution which limits the State’s power to require that medical procedures be done safely….” Sendak v. Arnold, 429 U.S. 968, 969 (1976) (WHITE, J., dissenting). “The mode and procedure of medical diagnostic procedures is not the business of judges.” Parham v. J. R., 442 U. S. 584, 442 U. S. 607 -608 (1979). Under the Roe framework, however, the state interest in maternal health cannot become compelling until the onset of the second trimester of pregnancy, because “until the end of the first trimester, mortality in abortion may be less than mortality in normal childbirth.” 410 U.S. at 410 U. S. 163. Before the second trimester, the decision to perform an abortion “must be left to the medical judgment of the pregnant woman’s attending physician.” Id. at 410 U. S. 164. [ Footnote 2/6 ]
The fallacy inherent in the Roe framework is apparent: just because the State has a compelling interest in ensuring maternal safety once an abortion may be more dangerous than childbirth, it simply does not follow that the State has no interest before that point that justifies state regulation to ensure that first trimester abortions are performed as safely as possible. [ Footnote 2/7 ]
The state interest in potential human life is likewise extant throughout pregnancy. In Roe, the Court held that, although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. Although the Court refused to “resolve the difficult question of when life begins,” id. at 410 U. S. 159, the Court chose the point of viability -when the fetus is capable of life independent of its mother -to permit the complete proscription of abortion. The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward. Accordingly, I believe that the State’s interest in protecting potential human life exists throughout the pregnancy.
III
Although the State possesses compelling interests in the protection of potential human life and in maternal health throughout pregnancy, not every regulation that the State imposes must be measured against the State’s compelling interests and examined with strict scrutiny. This Court has acknowledged that
the right in Roe v. Wade can be understood only by considering both the woman’s interest and the nature of the State’s interference with it. Roe did not declare an unqualified ‘constitutional right to an abortion.’… Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.
Maher, 432 U.S. at 432 U. S. 473 -474. The Court and its individual Justices have repeatedly utilized the “unduly burdensome” standard in abortion cases. [ Footnote 2/8 ]
The requirement that state interference “infringe substantially” or “heavily burden” a right before heightened scrutiny is applied is not novel in our fundamental-rights jurisprudence, or restricted to the abortion context. In San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 411 U. S. 37 -38 (1973), we observed that we apply “strict judicial scrutiny” only when legislation may be said to have ” deprived,’ `infringed,’ or `interfered’ with the free exercise of some such fundamental personal right or liberty.” If the impact of the regulation does not rise to the level appropriate for our strict scrutiny, then our inquiry is limited to whether the state law bears “some rational relationship to legitimate state purposes.” Id. at 411 U. S. 40. Even in the First Amendment context, we have required in some circumstances that state laws “infringe substantially” on protected conduct, Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539, 372 U. S. 545 (1963), or that: there be “a significant encroachment upon personal liberty,” Bates v. City of Little Rock, 361 U. S. 516, 361 U. S. 524 (1960).
In Carey v. Population Services International, 431 U. S. 678 (1977), we eschewed the notion that state law had to meet the exacting “compelling state interest” test ” whenever it implicates sexual freedom.'” Id. at 431 U. S. 688, n. 5. Rather, we required that, before the “strict scrutiny” standard was employed, it was necessary that the state law “impos[e] a significant burden” on a protected right, id. at 431 U. S. 689, or that it
burden an individual’s right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision….
Id. at 431 U. S. 688 (emphasis added). The Court stressed that “even a burdensome regulation may be validated by a sufficiently compelling state interest.” Id. at 431 U. S. 686. Finally, Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 485 (1965), recognized that a law banning the use of contraceptives by married persons had “a maximum destructive impact” on the marital relationship.
Indeed, the Court today follows this approach. Although the Court does not use the expression “undue burden,” the Court recognizes that even a “significant obstacle” can be justified by a “reasonable” regulation. See ante at 462 U. S. 434, 462 U. S. 435, 462 U. S. 438.
The “undue burden” required in the abortion cases represents the required threshold inquiry that must be conducted before this Court can require a State to justify its legislative actions under the exacting “compelling state interest” standard.
[A] test so severe that legislation rarely can meet it should be imposed by courts with deliberate restraint in view of the respect that properly should be accorded legislative judgments.
Carey, supra, at 431 U. S. 705 (POWELL, J., concurring in part and concurring in judgment).
The “unduly burdensome” standard is particularly appropriate in the abortion context because of the nature and scope of the right that is involved. The privacy right involved in the abortion context “cannot be said to be absolute.” Roe, 410 U.S. at 410 U. S. 154. ” Roe did not declare an unqualified constitutional right to an abortion.'” Maher, 432 U.S. at 432 U. S. 473. Rather, the Roe right is intended to protect against state action “drastically limiting the availability and safety of the desired service,” id. at 432 U. S. 472, against the imposition of an “absolute obstacle” on the abortion decision, Danforth, 428 U.S. at 428 U. S. 70 -71, n. 11, or against “official interference” and “coercive restraint” imposed on the abortion decision, Harris, 448 U.S. at 448 U. S. 328 (WHITE,J., concurring). That a state regulation may “inhibit” abortions to some degree does not require that we find that the regulation is invalid. See H. L. v. Matheson, 450 U. S. 398, 450 U. S. 413 (1981).
The abortion cases demonstrate that an “undue burden” has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision In Roe, the Court invalidated a Texas statute that criminalized all abortions except those necessary to save the life of the mother. In Danforth, the Court invalidated a state prohibition of abortion by saline anmiocentesis because the ban had “the effect of inhibiting… the vast majority of abortions after the first 12 weeks.” 428 U.S. at 428 U. S. 79. The Court today acknowledges that the regulation in Danforth effectively represented “a complete prohibition on abortions in certain circumstances.” Ante at 462 U. S. 429, n. 11 (emphasis added). In Danforth, the Court also invalidated state regulations requiring parental or spousal consent as a prerequisite to a first trimester abortion because the consent requirements effectively and impermissibly delegated a “veto power” to parents and spouses during the first trimester of pregnancy. In both Bellotti I, 428 U. S. 132 (1977), and Bellotti v. Baird, 443 U. S. 622 (1979) ( Bellotti II ), the Court was concerned with effective parental veto over the abortion decision. [ Footnote 2/9 ]
In determining whether the State imposes an “undue burden,” we must keep in mind that, when we are concerned with extremely sensitive issues, such as the one involved here,
the appropriate forum for their resolution in a democracy is the legislature. We should not forget that ‘legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’ Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 194 U. S. 270 (1904) (Holmes, J.).
Maher, 432 U.S. at 432 U. S. 479 -480 (footnote omitted). This does not mean that, in determining whether a regulation imposes an “undue burden” on the Roe right, we defer to the judgments made by state legislatures.
The point is, rather, that, when we face a complex problem with many hard questions and few easy answers, we do well to pay careful attention to how the other branches of Government have addressed the same problem.
Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 103 (1973). [ Footnote 2/10 ]
We must always be mindful that
[t]he Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action ‘encouraging childbirth except in the most urgent circumstances’ is ‘rationally related to the legitimate governmental objective of protecting potential life.’ Harris v. McRae, 448 U.S. at 448 U. S. 325. Accord, Maher v. Roe, supra, at 432 U. S. 473 -474.
H. L. v. Matheson, supra, at 450 U. S. 413 (footnote omitted).
IV
Section 1870.03 of the Akron ordinance requires that second trimester abortions be performed in hospitals. The Court holds that this requirement imposes a “significant obstacle” in the form of increased costs and decreased availability of abortions, ante at 462 U. S. 434 -435, 462 U. S. 435, and the Court rejects the argument offered by the State that the requirement is a reasonable health regulation under Roe, 410 U.S. at 410 U. S. 163. See ante at 462 U. S. 435 -436.
For the reasons stated above, I find no justification for the trimester approach used by the Court to analyze this restriction. I would apply the “unduly burdensome” test, and find that the hospitalization requirement does not impose an undue burden on that decision.
The Court’s reliance on increased abortion costs and decreased availability is misplaced. As the city of Akron points out, there is no evidence in this case to show that the two Akron hospitals that performed second trimester abortions denied an abortion to any woman, or that they would not permit abortion by the D&E; procedure. See Reply Brief for Petitioner in No. 81-746, p. 3. In addition, there was no evidence presented that other hospitals in nearby areas did not provide second trimester abortions. Further, almost any state regulation, including the licensing requirements that the Court would allow, see ante at 462 U. S. 437 -438, n. 26, inevitably and necessarily entails increased costs for any abortion. In Simopoulos v. Virginia, post, p. 462 U. S. 506, the Court upholds the State’s stringent licensing requirements that will clearly involve greater cost because the State’s licensing scheme “is not an unreasonable means of furthering the State’s compelling interest in” preserving maternal health. Post at 462 U. S. 519. Although the Court acknowledges this indisputably correct notion in Simopoulos, it inexplicably refuses to apply it in this case. A health regulation, such as the hospitalization requirement, simply does not rise to the level of “official interference” with the abortion decision. See Harris, supra, at 448 U. S. 328 (WHITE, J., concurring).
Health-related factors that may legitimately be considered by the State go well beyond what various medical organizations have to say about the physical safety of a particular procedure. Indeed, “all factors -physical, emotional, psychological, familial, and the woman’s age -[are] relevant to the wellbeing of the patient.” Doe v. Bolton, 410 U. S. 179, 410 U. S. 192 (1973). The ACOG Standards, upon which the Court relies, state that
[r]egardless of advances in abortion technology, midtrimester terminations will likely remain more hazardous, expensive, and emotionally disturbing for a woman than early abortions.
American College of Obstetricians and Gynecologists, Technical Bulletin No. 56: Methods of Midtrimester Abortion 4 (Dec.1979).
The hospitalization requirement does not impose an undue burden, and it is not necessary to apply an exacting standard of review. Further, the regulation has a “rational relation” to a valid state objective of ensuring the health and welfare of its citizens. See Williamson v. Lee Optical Co., 348 U. S. 483, 348 U. S. 491 (1955). [ Footnote 2/11 ]
B
Section 1870.05(B)(2) of the Akron ordinance provides that no physician shall perform an abortion on a minor under 15 years of age unless the minor gives written consent, and the physician first obtains the informed written consent of a parent or guardian, or unless the minor first obtains “an order from a court having jurisdiction over her that the abortion be performed or induced.” Despite the fact that this regulation has yet to be construed in the state courts, the Court holds that the regulation is unconstitutional because it is not “reasonably susceptible of being construed to create an opportunity for case-by-case evaluations of the maturity of pregnant minors.'” Ante at 462 U. S. 441 (quoting Bellotti II, 443 U.S. at 443 U. S. 643 -644, n. 23 (plurality opinion)). I believe that the Court should have abstained from declaring the ordinance unconstitutional.
In Bellotti I, the Court abstained from deciding whether a state parental consent provision was unconstitutional as applied to mature minors. The Court recognized and respected the well-settled rule that abstention is proper
where an unconstrued state statute is susceptible of a construction by the state judiciary ‘which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.’
428 U.S. at 428 U. S. 147 (quoting Harrison v. NAACP, 360 U. S. 167, 360 U. S. 177 (1959)). While acknowledging the force of the abstention doctrine, see ante at 462 U. S. 440 -441, the Court nevertheless declines to apply it. Instead, it speculates that a state juvenile court might inquire into a minor’s maturity and ability to decide to have an abortion in deciding whether the minor is being provided ” surgical care… necessary for his health, morals, or wellbeing,'” ante at 462 U. S. 441, n. 31 (quoting Ohio Rev.Code Ann. 2151.03 (1976)). The Court ultimately rejects this possible interpretation of state law, however, because filing a petition in juvenile court requires parental notification, an unconstitutional condition insofar as mature minors are concerned.
Assuming, arguendo, that the Court is correct in holding that a parental notification requirement would be unconstitutional as applied to mature minors, [ Footnote 2/12 ] I see no reason to assume that the Akron ordinance and the State Juvenile Court statute compel state judges to notify the parents of a mature minor if such notification was contrary to the minor’s best interests. Further, there is no reason to believe that the state courts would construe the consent requirement to impose any type of parental or judicial veto on the abortion decisions of mature minors. In light of the Court’s complete lack of knowledge about how the Akron ordinance will operate, and how the Akron ordinance and the State Juvenile Court statute interact, our ” scrupulous regard for the rightful independence of state governments'” counsels against
unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system.
Harrison v. NAACP, supra, at 360 U. S. 176 (quoting Matthews v. Rodgers, 284 U. S. 521, 284 U. S. 525 (1932)).
C
The Court invalidates the informed consent provisions of § 1879.06(B) and § 1879.06(C) of the Akron ordinance. [ Footnote 2/13 ] Although it finds that subsections (1), (2), (6), and (7) of § 1879.06(B) are “certainly… not objectionable,” ante at 462 U. S. 445 -446, n. 37, it refuses to sever those provisions from subsections (3), (4), and (5) because the city requires that the “acceptable” information be provided by the attending physician when “much, if not all, of it could be given by a qualified person assisting the physician,” ibid. Despite the fact that the Court finds that § 1879.06(C) “properly leaves the precise nature and amount of… disclosure to the physician’s discretion and medical judgment,'” ante at 462 U. S. 447, the Court also finds § 1879.06(C) unconstitutional because it requires that the disclosure be made by the attending physician, rather than by other “qualified persons” who work at abortion clinics.
We have approved informed consent provisions in the past even though the physician was required to deliver certain information to the patient. In Danforth, the Court upheld a state informed consent requirement because
[t]he decision to abort, indeed, is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.
428 U.S. at 67. [ Footnote 2/14 ] In H. L. v. Matheson, the Court noted that the state statute in the case required that the patient
be advised at a minimum about available adoption services, about fetal development, and about foreseeable complications and risks of an abortion. See Utah Code Ann. 76-7-305 (1978). In Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 428 U. S. 65 -67 (1976), we rejected a constitutional attack on written consent provisions.
450 U.S. at 450 U. S. 400 -401, n. 1. Indeed, we have held that an informed consent provision does not “unduly burde[n] the right to seek an abortion.” Bellotti I, 428 U.S. at 428 U. S. 147. [ Footnote 2/15 ]
The validity of subsections (3), (4), and (5) is not before the Court, because it appears that the city of Akron conceded their unconstitutionality before the court below. See Brief for City of Akron in No. 79-3757 (CA6), p. 35; R