526
DIGNITY, PRIVACY & PERSONAL AUTONOMY
í h   -
The USSC held that there is a right to consume pornography in prive Stanley v. Georgia, 394 U.S. 557 (1969), while others have argued tl pornography violates the rights of people, particularly the rights of won: and children. See Catharine A. MacKinnon, Sex Equality 1532-1626 (200 The Court stated that "the makers of our Constitution undertook to seci conditions favorable to the pursuit of happiness." Whose happiness coun Against what other rights should this happiness be balanced? And is porn> raphy about "happiness"? Consider that the SACC, in Curtis v. The Minis of Safety and Security and others, 1996 (3) SALR 617 (CO, with reference the Canadian decision R. v. Butler, [1992] 1 S.C.R. 452, argued that porn raphy should not be viewed from "a public-morality basis that underpins 1 American approach," but rather judged according to "a standard bat explicitly on the harm believed to be engendered by certain kinds of soxue explicit material." The Court, nonetheless, upheld its use in private. Remc ber that some crimes, particularly those committed against children e women, many of which are sexual in nature, are committed at home. Shoi this make a difference in considering the inviolability of privacy righ 4.    "Private parts."  Places  that  can  be  considered private,   wh searches have to be based on law and be justifiable, are clearly not limited the home and the prison cell. But does the constitutional protection privacy extend to the body, to one's "private parts"? In the U.S., it was h> that, although vaginal searches "give us cause for concern as they implic and threaten the highest degree of dignity," after balancing all factors. 1,1 did not constitute a violation of privacy, since 'rthe search was not unreas< able by its very nature." Rodriques v. Furtado, 950 F.2d 805 (1st Cir.l9£ Is a right to dignity at stake here as well, or is this a violation of physi integrity? The USSC also held that surgery may constitute a potenlii unconstitutional search in Winston v. Lee, 470 U.S. 753 (1985). Consider constitutional requirements necessary to permit such intrusions. If one í consent to surgery, can one consent to a search of one's house or car ii criminal investigation? If a legal system accepts implied consent in modi cases, does it have to accept implied consent to police activities, or is thor difference? How do you know whether someone has "consented" freely ť violation of privacy? Can one voluntarily forfeit one's privacy? Can ( consent to the abridgement of a fundamental right?
C.   THE RIGHT TO BODILY SELF-DETERMINATION
Cases on dignity, autonomy, and privacy do not deal only w territorial understandings of constitutional protection but also w decisional aspects of personhood. The right to bodily self-detemii. tion—the right to dispose of one's body as one chooses—is an integ component of this. The following cases illustrate that the private is . restricted to the literal space of the home but extends to the private b< as well. This is supported by a strong philosophical and jurisprudenl tradition that understands autonomy in terms of ownership of or body. Western thinking tends toward the position that human ben have a broad individual right to make decisions on matters with p found consequences for one's body and one's life. Thus we find the nj to privacy prominently in the so-called Biomedicine Convention.
Si-c-. •
ABORTION
527
"Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine" (Oviedo, 4.IV.1997), a European international treaty that seeks to complement the European HR Convention in an effort to protect the dignity and identity of all human beings without discrimination. See H.D.C. Roscam Abbing, The Convention on Human Rights and Biomedicine: An Appraisal of the Council of Europe Convention, European Journal of Health Law 377-87 (1998). But where are the limits of this kind of self-determination? Grand theories often ignore that a right to one's body is bound to social status, race, and gender. In addition, the tradition of self-ownership may, for example, conflict with conceptions of life and the body which stem from theoretical frameworks that view life as a given, either by nature or some metaphysical force, as in certain theological traditions. The longstanding and controversial debates about reproductive rights, at the forefront of which is the right to an abortion, raise these issues in complex ways, which is why we discuss them first. More recently, related questions have arisen around whether, given that one cannot take the life of another person, one has a legal right to take one's own life. Since suicide is not prohibited in most jurisdictions, these cases revolve around the issue of assisted suicide.
C.l.   ABORTION ROE v. WADE
Supreme Court (United States). 410 U.S. 113 (1973).
IA pregnant woman and others challenged the constitutionality of a statute making a crime to "procure an abortion" except "by medical advice for the purpose of saving the life of the mother."]
Justice Blackmun delivered the opinion of the Court.
* * * We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the, raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. * * *
file principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. * * *
f he Constitution does not explicitly mention any right of privacy. In a line of decisions, however, * * * [the] Court has recognized that a "ght of personal privacy, * * * does exist under the Constitution. [Based
528                 DIGNITY, PRIVACY & PERSONAL AUTONOMY
on precedents] only personal rights that can be deemed "fundamen" i" or "implicit in the concept of ordered liberty/' Paľko v. Connecticut, siy U.S. 319, 325 (1937), are included in this guarantee of personal priv i ť They also make it clear that the right has some extension to activj. ■ *. relating to marriage * * *; procreation * * *; contraception * * *: f.,,,., ly relationships * * *; and childrearing and education * * *.
This right of privacy, whether it be founded in the Fourtcc i i! Amendment's concept of personal liberty and restrictions upon pi i inaction, as we feel it is, or [in] the Ninth Amendment's reservatio- ••' rights to the people, is broad enough to encompass a woman's deci1 ü-> whether or not to terminate her pregnancy. The detriment that liu« State would impose upon the pregnant woman by denying this ch ■ ■■ altogether is apparent. Specific and direct harm medically diagnos ■ Ii'j even in early pregnancy may be involved. Maternity, or addition n offspring, may force upon the woman a distressful life and Jut-u-Psychological harm may be imminent. Mental and physical health n ■. be taxed by child care. There is also the distress, for all concern i|. associated with the unwanted child, and there is the problem of brin:. i-^ a child into a family already unable, psychologically and otherwist i» care for it. In other cases, as in this one, the additional difficulties m ! continuing stigma of unwed motherhood may be involved. All these ■ factors the woman and her responsible physician necessarily will cor m-er in consultation.
On the basis of elements such as these, appellant and some ai u argue that the woman's right is absolute and that she is entitle • i ■ terminate her pregnancy at whatever time, in whatever way, and 'h whatever reason she alone chooses. With this we do not agree. * [The] Court's decisions recognizing a right of privacy also acknowl»1' -that some state regulation in areas protected by that right is approi  i-ate. * * * [A] State may properly assert important interests in í-    ■-guarding health, in maintaining medical standards, and in protec i ■ -' potential life. At some point in pregnancy, these respective intei ■ - -become sufficiently compelling to sustain regulation of the factors *••"' govern the abortion decision. The privacy right involved, there; ■ ■ ■ cannot be said to be absolute. In fact, it is not clear to us that the cl   "■ asserted by some amid that one has an unlimited right to do with <.■■■■-body as one pleases bears a close relationship to the right of pri  ■•v previously articulated in the Court's decisions. The Court has refuse ' " recognize an unlimited right of this kind in the past [in case;- "' vaccination and sterilization]. We, therefore, conclude that the rigl-   " personal privacy includes the abortion decision, but that this right is- '" unqualified, and must be considered against important state interes1 - ■' regulation.
Sec
ABORTION
529
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY
Supreme Court (United States). 505 U.S. 833 (1992).
Justice O'Connor, Justice Kennedy, and Justice Souter delivered the jdgment of the Court and the opinion of the Court with respect to Parts I II, III, V-A, V-C and VI, and an opinion with respect to other Parts.
I
Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years .iter our holding that the Constitution protects a woman's right to
■ orminate her pregnancy in its early stages, Roe v. Wade 410 U.S. 113, i hat definition of liberty is still questioned. * * *
At issue in these cases are five provisions of the Pennsylvania Vbortion Control Act of 1982, as amended in 1988 and 1989.
* * * .Roe's essential holding, the holding we reaffirm, has three i larts. First is a recognition of the right of the woman to choose to have .,n abortion before viability and to obtain it without undue interference rom the State. Before viability, the State's interests are not strong nough to support a prohibition of abortion or the imposition of a -ubstantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after 3tal viability, if the law contains exceptions for pregnancies which
■ ndanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in i protecting the health of the woman and the life of the fetus that may 'lecome a child. These principles do not contradict one another; and we idhere to each.
II
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process  Clause of the Fourteenth unendment. It declares that no State shall "deprive any person of life, iberty, or property, without due process of law." * * *
It is also tempting, for the same reason, to suppose that the Due
rocess Clause protects only those practices, defined at the most specific
■ävei, that were protected against government interference by other rules
"í law when the Fourteenth Amendment was ratified. See Michael H. v. waldD., 491 U.S. 110, 127-128, n. 6 (1989) (opinion of SCALIA, J.).
^ >ut such a view would be inconsistent with our law. It is a promise of ue Constitution that there is a realm of personal liberty which the overnment may not enter. * * *
Neither the Bill of Rights nor the specific practices of States at the .tow of the adoption of the Fourteenth Amendment marks the outer
tt&rts of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Arndt. 9. As the second Justice Harlan
cognized:
530
DIGNITY, PRIVACY & PERSONAL AUTONOMY
Ch. r.
"[T]he full scope of the liberty guaranteed by the Due Proces-Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not ;i series of isolated points pricked out in terms of the taking of property the freedom of speech, press, and religion; the right to keep and bea1 arms; the freedom from unreasonable searches and seizures; and so on It is a rational continuum which, broadly speaking, includes a freedon from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgmem must, that certain interests require particularly careful scrutiny of th« state needs asserted to justify their abridgment." Poe v. Ullman, supra. [367 U.S.,] at 543, (opinion dissenting from dismissal on jurisdictional grounds).
Justice Harlan wrote as follows on an issue the full Court did noi reach in Poe v. Ullman, but the Court adopted his position four Term.-later in Griswold v. Connecticut, supra. * * *
Men and women of good conscience can disagree, and we supposi some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Som-of us as individuals find abortion offensive to our most basic principles o' morality, but that cannot control our decision. Our obligation is to defmi the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophy questions in such a definitive way that a woman lacks all choice in th-matter, except perhaps in those rare circumstances in which the preg nancy is itself a danger to her own life or health, or is the result of raptor incest.
* * * Our cases recognize "the right of the individual, married oi single, to be free from unwarranted governmental intrusion into matter-so fundamentally affecting a person as the decision whether to bear oi beget a child." Eisenstadt v. Baird, supra, [405 U.S.,] at 453. * * 4 A" the heart of liberty is the right to define one's own concept of existence of meaning, of the universe, and of the mystery of human life. Belieí-about these matters could not define the attributes of personhood wer«1 they formed under compulsion of the State.
These considerations begin our analysis of the woman's interest in terminating her pregnancy but cannot end it, for this reason: though th«1 abortion decision may originate within the zone of conscience and belief it is more than a philosophic exercise. Abortion is a unique act. It is at1 act fraught with consequences for others: for the woman who must liv1" with the implications of her decision; for the persons who perform an«" assist in the procedure; for the spouse, family, and society which mufr confront the knowledge that these procedures exist, procedures som ■ deem nothing short of an act of violence against innocent human lue. and, depending on one's beliefs, for the life or potential life that l" aborted. Though abortion is conduct, it does not follow that the Statu l-entitled to proscribe it in all instances. That is because the liberty of ib" woman is at stake in a sense unique to the human condition and s' unique to the law. The mother who carries a child to full term is subjec"
Sec. _C
ABORTION
531
to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.
*  * * [M]oreover * * * in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold u. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International afford constitutional protection. * * *
*  * * We have seen how time has overtaken some of Roe's factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, * * * and advances in neonatal care have advanced viability to a point somewhat earlier. * * * But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of i?oe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in iroe's factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.
s * The country's loss of confidence in the Judiciary [resulting from the disregard of precedent in this case] would be underscored by an equally certain and equally reasonable condemnation for another failing m overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. * * * The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. * * *
IV
* We conclude that the basic decision in Roe was based on a oiiKUtutional analysis which we cannot now repudiate. The woman's loerty is not so unlimited, however, that from the outset the State
532______    DIGNITY, PRIVACY & PERSONAL AUTONOMY            Ch  g
cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted
*  * * We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. * * *
*  * * [T]he concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. * * * Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. :: + *
On the other side of the equation is the interest of the State in the protection of potential life. * * *
*  * * [1] t must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but also the State's "important and legitimate interest in potential life. * * *
Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there arc procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. * * *
We reject the trimester framework, which we do not consider to be part of the essential holding of Roe. * * * The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe.
As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult io exercise is, ipso facto, an infringement of that right. * * *
*  * * Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. * *
*  * * Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty. * * *
*  * * [W]e answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed io further the State's interest in fetal life which imposes an undue burden
*íi!C.  C
ABORTION
533
the woman's decision before fetal viability could be constitutional. * * The answer is no.
Some guiding principles should emerge. What is at stake is the \ oman's right to make the ultimate decision, not a right to be insulated ■■om all others in doing so. Regulations which do no more than create a -iructural mechanism by which the State, or the parent or guardian of a ■■linor, may express profound respect for the life of the unborn are i.-irmitted, if they are not a substantial obstacle to the woman's exercise n.'the right to choose. See infra, at 899-900 (addressing Pennsylvania's : irental consent requirement). Unless it has that effect on her right of íoice, a state measure designed to persuade her to choose childbirth
■ ■ver abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are \ did if they do not constitute an undue burden. * * *
V
B
We next consider the informed consent requirement. 18 Pa. Cons. Sat. § 3205 (1990). Except in a medical emergency, the statute requires iliat at least 24 hours before performing an abortion a physician inform ie woman of the nature of the procedure, the health risks of the ihortion and of childbirth, and the "probable gestational age of the unborn child." The physician or a qualified nonphysician must inform
■ :ie woman of the availability of printed materials published by the State ■lescribing the fetus and providing information about medical assistance '•it childbirth, information about child support from the father, and a list ■t agencies which provide adoption and other services as alternatives to
■ bortion. An abortion may not be performed unless the woman certifies ľ i writing that she has been informed of the availability of these printed * laterials and has been provided them if she chooses to view them.
Our prior decisions establish that as with any medical procedure,
!ie State may require a woman to give her written informed consent to
n abortion. * * * In this respect, the statute is unexceptional. Petition-
■■rs challenge the statute's definition of informed consent because it
includes the provision of specific information by the doctor and the
"■landatory 24-hour waiting period. The conclusions reached by a majori-
1 r of the Justices in the separate opinions filed today and the undue
'■urden standard adopted in this opinion require us to overrule in part
- 3me of the Court's past decisions, decisions driven by the trimester
I'amework's prohibition of all previability regulations designed to fur-
ier the State's interest in fetal life. * * *
* * [RJequiring that the woman be informed of the availability of ^formation relating to fetal development and the assistance available
hould she decide to carry the pregnancy to full term is a reasonable 1 measure to ensure an informed choice, one which might cause the ,,roman to choose childbirth over abortion. This requirement cannot be
onsidered a substantial obstacle to obtaining an abortion, and, it fol-
}ws, there is no undue burden.
534
DIGNITY, PRIVACY & PERSONAL AUTONOMY
Ch. .-,
*  * * Whether the mandatory 24-hour waiting period is nonethelet-invalid because in practice it is a substantial obstacle to a woman'-choice to terminate her pregnancy is a closer question. The findings ol fact by the District Court indicate that because of the distances mar women must travel to reach an abortion provider, the practical effeci will often be a delay of much more than a day because the waiting perioil requires that a woman seeking an abortion make at least two visits 1 . the doctor. The District Court also found that in many instances this wi I increase the exposure of women seeking abortions * * *
*  * * [A] s we have stated, under the undue burden standard a Stan-is permitted to enact persuasive measures which favor childbirth ovci abortion, even if those measures do not further a health interest. An-i while the waiting period does limit a physician's discretion, that is no standing alone, a reason to invalidate it. * * *
We are left with the argument that the various aspects of tin informed consent requirement are unconstitutional because they plat-barriers in the way of abortion on demand. Even the broadest reading >-l Roe, however, has not suggested that there is a constitutional right !■ abortion on demand. * * * Rather, the right protected by Roe is a rigl to decide to terminate a pregnancy free of undue interference by instate. Because the informed consent requirement facilitates the wi.-exercise of that right, it cannot be classified as an interference with tr right Roe protects. The informed consent requirement is not an undi'1 burden on that right.
C
Section 3209 of Pennsylvania's abortion law provides, except " cases of medical emergency, that no physician shall perform an abortío i on a married woman without receiving a signed statement from tt ■ woman that she has notified her spouse that she is about to undergo a i abortion. * * *
*  * * In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions < women in this country who are the victims of regular physical ar psychological abuse at the hands of their husbands. Should these worn« '■ become pregnant, they may have very good reasons for not wishing f" inform their husbands of their decision to obtain an abortion. * * Many may fear devastating forms of psychological abuse from the ■ husbands, including verbal harassment, threats of future violence, "
The spousal notification requirement is thus likely to prevent ■• significant number of women from obtaining an abortion. It does ft'' merely make abortions a little more difficult or expensive to obtain; f« ^ many women, it will impose a substantial obstacle. We must not blir ■ i ourselves to the fact that the significant number of women who fear r<' their safety and the safety of their children are likely to be deterred fro«' procuring an abortion as surely as if the Commonwealth had outlaw*'1 abortion in all cases. * * *
ABORTION                                         535
Chief Justice Rehnquist, with whom Justice White, Justice Scalia, n.L Justice Thomas join, concurring in the judgment in part and ,i-anting in part.
The joint opinion, following its newly minted variation on stare ■. isis, retains the outer shell of Roe v. Wade, 410 U.S. 113 (1973), but !-. "ts a wholesale retreat from the substance of that case. We believe 11 it Koe was wrongly decided, and that it can and should be overruled ii.nsistently with our traditional approach to stare decisis in constitu-■ '.lial cases.
I
Í.    ::    *
In arguing that this Court should invalidate each of the provisions it issue, petitioners insist that we reaffirm our decision in Roe v. Wade, vra. in which we held unconstitutional a Texas statute making it a u i ne I o procure an abortion except to save the life of the mother.3 * * * Mi hough they reject the trimester framework that formed the underpin--ig of Roe, Justices O'CONNOR, KENNEDY, and SOUTER adopt a i    i sed undue burden standard to analyze the challenged regulations. W- conclude, however, that such an outcome is an unjustified constitutional compromise, one which leaves the Court in a position to closely - i utinize all types of abortion regulations despite the fact that it lacks "■ power to do so under the Constitution. * * *
* ŕ * Unlike marriage, procreation, and contraception, abortion i vol ves the purposeful termination of a potential life." Harris v.
V Rac, 448 U.S. 297, 325 (1980). The abortion decision must therefore l«o recognized as sui generis, different in kind from the others that the
* ■ art has protected under the rubric of personal or family privacy and
■ ■■onomy." Thornburgh v. American College of Obstetricians and Gyne-
■   agists, supra, [476 U.S.,] at 792, (WHITE, J., dissenting). One cannot u mre the fact that a woman is not isolated in her pregnancy, and that
1'' • decision to abort necessarily involves the destruction of a fetus. See -/vAof'J H. v. Gerald D., supra, [491 U.S.,] at 124, n. 4, (To look "at the
■*i   which is assertedly the subject of a liberty interest in isolation from
effect upon other people [is] like inquiring whether there is a liberty ■' crest in firing a gun where the case at hand happens to involve its ! -charge into another person's liody").
* * Because the undue burden standard is plucked from nowhere,
,,! question of what is a "substantial obstacle" to abortion will un-
'" ubtedly engender a variety of conflicting views. For example, in the
■' "y matter before us now, the authors of the joint opinion would uphold
■ msylvania's 24-hour waiting period, concluding that a "particular
■Tden" on some women is not a substantial obstacle. * * * But the
■'•   Two years after Roe, the.GFCC, by     tion Decision: A Contrast to Roe v. Wade, 9
kast, struck down a law liberalizing ac-     John Marshall J. Prac. & Proc. 605 (1976)).
.,   ,to.abortion on the grounds that life     In 1988, the Canadian Supreme Court fol-
B °PIng within the womb is constitution-     lowed reasoning similar to that of Roe in
ií^on           Jud£ment of February 25,     striking down a law that restricted abor-
,    °. 39 BVerfGE 1 (translated in Robert     tion. R.  v. Morgentaler,  1 S.C.R.  30, 44
33 and John Gorby, West German Abor-     D.L.R. 4th 385 (1988).
536
DIGNITY, PRIVACY & PERSONAL AUTONOMY
Ch. .-,
authors would at the same time strike down Pennsylvania's spoiK-l notice provision, after finding that in a "large fraction" of cases !",. provision will be a substantial obstacle. * * * And, while the autln-'., conclude that the informed consent provisions do not constitute r "undue burden," * * *
Furthermore, while striking down the spousal notice regulation. i,n joint opinion would uphold a parental consent restriction that certan k places very substantial obstacles in the path of a minor's abortion chou-The joint opinion is forthright in admitting that it draws this distincl mi based on a policy judgment that parents will have the best interests- i>. their children at heart, while the same is not necessarily true ■: husbands as to their wives. * * * This may or may not be a con-vi judgment, but it is quintessentially a legislative one. The "undue b-. den" inquiry does not in any way supply the distinction betw . .1 parental consent and spousal consent which the joint opinion ado:- -Despite the efforts of the joint opinion, the undue burden stand . il presents nothing more workable than the trimester framework whic 1 " discards today. Under the guise of the Constitution, this Court will. >.t| impart its own preferences on the States in the form of a comp ■ \ abortion code.* * *
Justice Scalia, with whom The Chief Justice, Justice White, :■■ . Justice Thomas join, concurring in the judgment in part and dissent 11 in part.
* * * The States may, if they wish, permit abortion on demand, ■. the Constitution does not require them to do so. The permissibility   •' abortion, and the limitations upon it, are to be resolved likes m -1 important questions in our democracy: by citizens trying to persuade <■! ■ another and then voting. * * *
That is, quite simply, the issue in these cases: not whether    ■■ power of a woman to abort her unborn child is a "liberty" in    ■■■ absolute sense; or even whether it is a liberty of great importance ľ many women. Of course it is both. The issue is whether it is a libc 1 protected by the Constitution of the United States. I am sure it is nm   I reach that conclusion not because of anything so exalted as my vii * -concerning the "concept of existence, of meaning, of the universe, anc1 ■' the mystery of human life." * * * Rather, I reach it for the same rea ■ n I reach the conclusion that bigamy is not constitutionally protecte-because of two simple facts: (1) the Constitution says absolutely noth ••, about it, and (2) the longstanding traditions of American society h   ■■ permitted it to be legally proscribed.1
1. The Court's suggestion, ante, at 847-848, that adherence to tradition would require us to uphold laws against interracial marriage is entirely wrong. Any tradition in that case was contradicted by a text—an Equal Protection Clause that explicitly establishes racial equality as a constitutional value. See Loving v. Virginia, 388 U.S. 1, 9 (1967) ("In the case at bar, ... we deal with statutes containing racial classifications, and the fact of equal application does
not immunize the statute from the heavy burden of justification -which Fourteenth Amendment has tradrtini required of state statutes drawn acton to race"); see also id., at 13 (Ste-.-'ui concurring in judgment). The enter] launched in Roe v. Wade, 410 U ri. (1973), by contrast, sought to establish the teeth of a clear, contrary traditfoi value found nowhere in the eonstiruu text* * *.
hi1»'- C
ABORTION
537
R. v. MORGENTALER
Supreme Court (Canada). [1988] 1 S.C.R. 30.
Dickson, C.J.
The principal issue raised by this appeal is whether the abortion
^.visions of the Criminal Code, R.S.C. 1970, c. C-34, infringe the "right
„ 'ife liberty and security of the person and the right not to be deprived
|- reof except in accordance with the principles of fundamental justice"
formulated in s. 7 of the Canadian Charter of Rights and Freedoms.
I  ie appellants, Dr. Henry Morgentaler [and others], have raised thir-!,- n distinct grounds of appeal. * * * It is submitted by the appellants
■  1 tt s. 251 of the Criminal Code contravenes s. 7 of the Canadian í   arter of Rights and Freedoms and that s. 251 should be struck down.
* * * [It] remains true that this Court cannot presume to resolve all n| the competing claims advanced in vigorous and healthy public debate. ( -arts and legislators in other democratic societies have reached com-n'itely contradictory decisions when asked to weigh the competing
■  . ues relevant to the abortion question. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Paton v. United Kingdom (1980), 3 E.H.R.R. (European t ■ urt of Human Rights); The Abortion Decision of the Federal Constitu-
■ rial Court—First Senate—of the Federal Republic of Germany, Febru-
II  r 25, 1975, translated and reprinted in (1976), 9 John Marshall J. ľi ac. and Proc. 605; and the Abortion Act, 1967, 1967, c. 87 (U.K.)
But since 1975, and the first Morgentaler decision, the Court has l-en given added responsibilities. * * * Although no doubt it is still fair i« say that courts are not the appropriate forum for articulating complex ■■■d controversial programmes of public policy, Canadian courts are now ■I arged with the crucial obligation of ensuring that the legislative initiatives pursued by our Parliament and legislatures conform to the ■'■ mocratic values expressed in the Canadian Charter of Rights and I • eedoms. * * *
III. * * * The three appellants are all duly qualified medical prac-■■ ioners who together set up a clinic in Toronto to perform abortions "ipon women who had not obtained a certificate from a therapeutic "Portion committee of an accredited or approved hospital as required by * 251(4). The doctors had made public statements questioning the A'sdom of the abortion laws in Canada and asserting that a woman has ■' unfettered right to choose whether or not an abortion is appropriate ''• her individual circumstances.
Indictments were preferred against the appellants charging that 1 ey had conspired with each other with intent to procure abortions 1 'titrary to ss. 423(l)(d) and 251(1) of the Criminal Code. [The three *'sre acquitted, and on appeal, the Supreme Court was confronted with ' 'e matter.] Per Dickson C.J. and Lamer J.:
[State] interference with bodily integrity and serious state-imposed t'-ychological stress, at least in the criminal law context, constitutes a 11 each of security of the person. Section 251 clearly interferes with a