Thornburgh v. American College of Obstetricians and Gynecologists - Further Readings

Appellant
Richard Thornburgh, U.S. Attorney General
Appellee
American College of Obstetricians and Gynecologists
Appellant's Claim
That new regulations imposed by Pennsylvania on abortion do not unconstitutionally restrict a woman's right to have an abortion.
Chief Lawyer for Appellant
Andrew S. Gordon
Chief Lawyer for Appellee
Kathryn Kolbert
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., ThurgoodMarshall, Lewis F. Powell, Jr., John Paul Stevens
Justices Dissenting
Warren E. Burger, Sandra Day O'Connor, William H. Rehnquist, Byron R. White
Place
Washington, D.C.
Date of Decision
11 June 1986
Decision
The Supreme Court struck down the regulations.
Significance
Reaffirmed Roe v. Wade.
In 1973, the Supreme Court delivered a 7-2 decision in favor of a constitutional right to abortion. Even that landmark decision was not without restrictions, however. Although during the first three months of pregnancy a woman hasan essentially unrestricted right to abortion, during months three through six of her pregnancy, the state has a right to regulate abortion to protect herhealth, and in the final three months of gestation, the Court authorized states to impose severe restrictions on abortion to protect the life of the fetus.
Over the next decade, the Court upheld a number of state legislative attemptsto control and even restrict abortion. But in 1983 and again in 1986, two Supreme Court decisions struck down regulations it considered thinly veiled attempts simply to make abortions more difficult to obtain and to circumvent theguidelines of Roe v. Wade (1973). In Akron v. Akron Center for Reproductive Health (1983), the Court threw out a prohibition on performingsecond-trimester abortions in clinics rather than hospitals, a requirement that doctors give women detailed information about the procedure before consentforms are signed, and a 24-hour waiting period between the time the consentform was signed and the procedure is performed.
In Thornburgh, the American College of Obstetrics and Gynecology challenged the Pennsylvania Abortion Control Act. The act contained a requirementthat women seeking abortions be given detailed information about the procedure in advance, that complex records must be kept, that doctors performing abortions use the technique least likely to harm the fetus, and that a second doctor be present during abortion procedures. After the U.S. District Court forthe Eastern District of Pennsylvania ruled in favor of the plaintiffs, and the court of appeals upheld this ruling, Richard Thornburgh, the governor of Pennsylvania, appealed to the U.S. Supreme Court.
Supreme Court Upholds the Right to Abortion
Justice Blackmun, author of the majority opinion in Roe, also wrote the opinion of the Court here. Blackmun expressed considerable impatience withattempts on the part of Pennsylvania and other states to restrict access to abortion:

In the years since this Court's decision in Roe, States and municipalities have adopted a number of measures seemingly designedto prevent a woman, with the advice of her surgeon, from exercising her freedom of choice . . . The States are not free, under the guise of protecting maternal health or potential life, to intimidate women unto continuing pregnancies. Appellants claim that the statutory provisions before us today further legitimate compelling interests of the Commonwealth. Close analysis of those provisions, however, shows that they wholly subordinate constitutional privacyinterests and concerns with maternal health in an effort to deter a woman from making a decision that, with her physician, is hers to make.

The Court went on to say that the information requirement was an attempt to intrude on the privileged relationship between doctor and patient. The recordkeeping requirement, in addition be being cumbersome, posed the risk of violating the woman's privacy. Forcing doctors to choose the technique least harmful to the fetus could put the mother's health in jeopardy, as could an enforced wait for a second doctor to arrive simply to observe the procedure.
Of the four dissenting justices, Chief Justice Burger wrote the most negativeappraisal of the majority's opinion. Burger thought that Roe had madeabortion on demand a constitutional right; he said without qualification that he thought the precedent should be overturned. White conceded that there was a constitutional right to choose abortion, but because he did not considerit a "fundamental" right, he believed that states should be given a great deal of latitude to regulate, and even restrict abortion.
With the retirement of Justice Powell in 1987 and his replacement by AnthonyKennedy the next year, the delicate balance of attitudes favoring abortion tilted in the opposite direction. In Webster v. Reproductive Health Services (1987) the Court came very close to overturning Roe outright. Four subsequent Court appointments, two by a Republican administration and two by a Democratic administration, have done little to resolve the abortion debate.
Related Cases

• Roe v. Wade, 410 U.S. 113 (1973).
  
• Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).
  
• Webster v. Reproductive Health Services, 492 U.S. 490 (1989).