Thornburgh v. American College of Obstetricians and Gynecologists

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), argued 5 Nov. 1985, decided 11 June 1986 by vote of 5 to 4; Blackmun for the Court, Burger, White, and Rehnquist, joined by O'Connor, in dissent. The Court invalidated several Pennsylvania abortion regulations, including a requirement that women seeking abortions be given detailed information (much like the information required by the ordinance invalidated three years earlier in Akron v. Akron Center for Reproductive Health, 1983), detailed record‐keeping requirements, a requirement that the physician use the technique most likely to protect the fetus in postviability abortions, and a requirement that a second physician be present at such abortions.

As in the law invalidated in Akron, the information requirement was viewed as an effort to discourage the woman from having an abortion; furthermore, the Court said, the requirement intruded on the private relationship between the woman and her physician. The record‐keeping requirements were invalid because they were too detailed and because they would be available to the public in a way that would make it possible to identify some women who had abortions. The requirements regarding medical care were invalid because they forced the physician to “trade off” the woman's health against that of the fetus and because the statute made no exception to the two‐doctor rule for cases in which the woman's life or health would be endangered by waiting for the second doctor to arrive.

The Court expressed impatience at what it regarded as repeated efforts by states to evade the requirements of Roe v. Wade (1973), and it reasserted the justification for the abortion decision in the face of an argument presented by the solicitor general that Roe should be overruled. Chief Justice Warren Burger's dissent stated that because Roe had come to stand for a requirement that abortions be available on demand, he was prepared to overrule it.

Justice Byron White's dissent also urged that Roe be overruled because it was misguided. His opinion acknowledged that the right to choose an abortion was an aspect of liberty protected by the Due Process Clause of the Fourteenth Amendment but argued that it, like other liberties not specifically identified in the Constitution, could nonetheless be restricted quite substantially. Because states could permissibly regard the interest of the fetus as important, a women's liberty to choose abortion was not fundamental and did not require strict scrutiny.

Thornburgh was to be the last case in which a firm majority of the Court adhered to the reasoning of Roe v. Wade. The retirement of Justice Lewis Powell, who had consistently supported Roe, and the appointment of Justice Anthony Kennedy led to a substantial assault on the framework established by Roe in Webster v. Reproductive Services (1989).

See also Due Process, Substantive; Gender; Privacy.

Mark V. Tushnet