On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Civil Action No. 88-3228)
Before: Stapleton, Alito, and Seitz, Circuit Judges
STAPLETON, Circuit Judge:
Five abortion clinics and one physician (the "clinics") raise a facial constitutional challenge to certain 1988 and 1989 amendments to the Pennsylvania Abortion Control Act of 1982 (the "Act"). See 18 Pa. Cons. Stat. Ann. §§ 3201-3220 (1983 & Supp. 1991). The United States District Court for the Eastern District of Pennsylvania held that §§ 3205 (informed consent), 3206 (parental consent), 3209 (spousal notice), 3214(a) (reporting requirements), and 3207(b) and 3214(f) (public disclosure of clinics' reports) violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Commonwealth defendants (the "Commonwealth") appeal. Because we find unconstitutional only § 3209, which requires notice to a spouse of a planned abortion, we will affirm in part and reverse in part.
The clinics filed a complaint alleging that certain 1988 amendments to the Pennsylvania Abortion Control Act of 1982 were facially unconstitutional. The district court issued a preliminary injunction. Thereafter, the court stayed all proceedings pending the Supreme Court's decision in Webster v. Reproductive Health Services in the summer of 1989. After the Webster decision, the Pennsylvania legislature passed further amendments to the Act. The clinics filed an amended complaint to include the 1989 amendments within the scope of their challenge, and the district court extended the preliminary injunction to include the 1989 amendments. The district court then conducted a three-day trial and issued an opinion holding several sections of the Act unconstitutional. The Commonwealth filed this timely appeal. The clinics have not cross-appealed on the provisions upheld by the district court. The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
In Webster v. Reproductive Health Services, 492 U.S. 490 (1989), the Supreme Court declined to reconsider Roe v. Wade, 410 U.S. 113 (1973), because the Missouri abortion regulations at issue in Webster did not conflict with Roe, which held that a statute which "criminalized the performance of all abortions, except when the mother's life was at stake . . . unconstitutionally infringed the right to an abortion." Webster, 492 U.S. at 521 (opinion of Rehnquist, C.J.). Like Webster, this appeal does not directly implicate Roe; this case involves the regulation of abortions rather than their outright prohibition. The threshold question is whether the standard of review of abortion regulations promulgated by the Court in Roe and in later cases such as Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), has survived Webster and the Court's subsequent decision in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990).
As Justice O'Connor cogently observed in an equal protection case alleging racial discrimination, a "dispute regarding the appropriate standard of review may strike some as a lawyers' quibble over words, but it is not. The standard of review establishes when the Court and Constitution allow the Government to employ racial classifications. A lower standard signals that the Government may resort to racial distinctions more readily." Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3033 (1990) (O'Connor, J., dissenting). Similarly, the standard of review used for abortion legislation establishes the degree to which the government may regulate abortion. Because of its importance to the resolution of the issues before us, we discuss at some length our reasons for selecting the standard we will subsequently use in analyzing the challenged provisions of the Pennsylvania Act. We will first examine the different standards of review that have been suggested by various Justices as appropriate for reviewing abortion regulations. Then we will consider the rules of stare decisis that must be employed in determining which of these standards we must apply in this case. A.
The choice of a standard of review in a substantive due process case turns on whether a "fundamental right" is implicated. The Justices of the Supreme Court were divided in Roe v. Wade and have continued to be divided over whether the right to an abortion is a fundamental right under the Due Process Clause.*fn1 Accordingly, they have disagreed over the proper standard to apply in reviewing abortion regulations. The majority in Roe concluded that abortion was a fundamental right and, therefore, applied strict scrutiny review, the standard of review generally applied in fundamental rights cases. See Roe, 410 U.S. at 155. The dissenters in Roe contended that abortion was not a fundamental right and thus judicial review of abortion regulations under the Due Process Clause should be no different from review of any social or economic legislation implicating a liberty interest. Therefore, they urged that the Court apply the deferential rational basis test traditionally used to review social and economic legislation. See id. at 173 (Rehnquist, J., dissenting).*fn2 Justice O'Connor has referred to the right to abortion as a "limited" fundamental right and adopted a middle ground between these two positions. She uses the strict scrutiny standard if the regulation at issue causes an "undue burden" on a woman's abortion decision and the rational basis standard if it does not. See Akron, 462 U.S. at 453, 465 n. 10 (O'Connor, J., dissenting).
1. In Roe, the Court held that the fundamental right of privacy protected by the Due Process Clause of the Fourteenth Amendment was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe, 410 U.S. at 153. Thus, the Court stated that a regulation limiting that fundamental right must meet the strict scrutiny test; it must be justified by a "compelling state interest" and "must be narrowly drawn" to serve that interest. Id. at 155. The Court held that the state's interests in maternal health and in the potential life of the fetus become compelling at different points in a woman's pregnancy. The state's interest in maternal health is compelling during the second and third trim esters; the state's interest in potential life is compelling when the fetus is viable, that is, during the third trimester. Id. at 162-64.
In dissent in Hodgson, the most recent abortion case, Justice Marshall, joined by Justices Brennan and Blackmun, summarized the approach of cases such as Roe, Doe v. Bolton, 410 U.S. 179 (1973), Akron, and Thornburgh: "we have subjected state laws limiting [the abortion] right to the most exacting scrutiny, requiring a State to show that such a law is narrowly drawn to serve a compelling interest. Only such strict judicial scrutiny is sufficiently protective of a woman's right to make the intensely personal decision whether to terminate her pregnancy." Hodgson, 110 S. Ct. at 2952 (Marshall, J., dissenting) (citations omitted).
A statute is struck down under rational basis review only if it is not rationally related to a legitimate state interest. The test is a deferential one, and state legislation is rarely invalidated as not rationally related to a legitimate state interest. See Williamson v. Lee Optical, 348 U.S. 483, 487 (1955); Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).
In Roe, Justice White and then-Justice Rehnquist dissented and, applying rational basis review, would have upheld Texas' criminal prohibition of abortion. In dissent in Thornburgh, Justice White, joined by Justice Rehnquist, stated his reasoning:
State action impinging on individual interests need only be rational to survive scrutiny under the Due Process Clause, and the determination of rationality is to be made with a heavy dose of deference to the policy choices of the legislature. Only "fundamental" rights are entitled to the added protection provided by strict judicial scrutiny of legislation that impinges upon them. I can certainly agree with the proposition--which I deem indisputable--that a woman's ability choose an abortion is a species of "liberty" that is subject to the general protections of the Due Process Clause. I cannot agree, however, that this liberty is so "fundamental" that restrictions upon it call into play anything more than the most minimal judicial scrutiny.
Thornburgh, 476 U.S. at 789-90 (White, J., dissenting) (citations omitted). In Webster, the plurality of Chief Justice Rehnquist, Justice White, and Justice Kennedy asked whether the challenged regulation "permissibly furthers the State's interest in protecting potential human life," Webster, 492 U.S. at 519-20, a standard that, at least for present purposes, we equate with rational basis review. See also Hodgson, 110 S. Ct. at 2969 (Kennedy, J., concurring and dissenting) (two-parent notification requirement represents "permissible, reasoned" attempt to further parents' rights).
Justice O'Connor has taken middle ground between these two positions. She has consistently stated that she would subject an abortion regulation to strict scrutiny review only if the regulation "unduly burdens" a woman's freedom to decide whether to terminate her pregnancy; otherwise, she would employ rational basis review. See Akron, 462 U.S. at 453 (O'Connor, J., dissenting) (citation omitted) ("If the particular regulation does not 'unduly burden' the fundamental right, then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose."); Thornburgh, 476 U.S. at 828 (O'Connor, J., dissenting) (repeating undue burden standard and citing dissent from Akron); Webster, 492 U.S. at 530 (O'Connor, J., concurring) (same); Hodgson, 110 S. Ct. at 2949-50 (O'Connor, J., concurring) (same).
Justice O'Connor has adopted the undue burden standard because of the "limited nature of the fundamental right that has been recognized in the abortion cases." Akron, 462 U.S. at 465 n.10 (O'Connor, J., dissenting). In support of her position, she has referenced both previous abortion cases and other fundamental rights cases.*fn3
With respect to the concept of "undue burden," Justice O'Connor explained in Akron that an undue burden occurs when a regulation imposes an "absolute obstacle or severe limitation on the abortion decision," not merely when a regulation "may 'inhibit' abortions to some degree." Akron, 462 U.S. at 464 (O'Connor, J., dissenting). She repeated this definition in other cases. In Thornburgh, she stated that "an undue burden will generally be found in situations involving absolute obstacles or severe limitations on the abortion decision." Thornburgh, 476 U.S. at 828 (O'Connor, J., dissenting). And in Hodgson, she observed that "the 'primary constitutional deficiency lies in [the notification statute's] imposition of an absolute limitation on the minor's right to obtain an abortion.'" Hodgson, 110 S. Ct. at 2950-51 (O'Connor, J. concurring) (emphasis added) (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 90 (1976)). Also in Hodgson, Justice O'Connor approved the judicial bypass procedure for the two-parent notification requirement on the grounds that it "would not impose parental approval as absolute condition upon the minor's right." Id. at 2951 (quoting Danforth, 428 U.S at 91) (emphasis added).*fn4
Having identified the three approaches that the Justices have suggested for reviewing abortion regulations, we must now decide which standard is presently the law of the land. As we have noted, the Court applied strict scrutiny review in Roe, Doe, Akron and Thornburgh. We thus must review Webster and Hodgson, to determine if the standard of review used in those cases displaced strict scrutiny as the standard binding on lower courts. In making that determination, we will apply several principles of law that constrain lower courts in their decisionmaking.
Decisions of the Supreme Court regarding federal law and the Constitution are binding on the lower courts. There is no room in our system for departure from this principle, for if it were otherwise, the law of the land would quickly lose its coherence. See Hutto v. Davis, 454 U.S. 370, 375 (1982). The Supreme Court with its limited docket would become irrelevant in all but the handful of cases that reached it.
To say that such decisions are binding, however, does not suffice in the current context. We must determine what components of a Supreme Court decision constitute precedent binding on lower courts. In constitutional cases, the Court's opinions usually include two major aspects. First, the Court provides the legal standard or test that is applicable to laws implicating a particular constitutional provision. This is part of the reasoning of the decision, the ratio decidendi.*fn5 Second, the Court applies that standard or test to the particular facts of the case that the Court is confronting--in other words, it reaches a specific result using the standard or test. See, e.g., Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456 (1991) (applying four-part O'Brien test and holding ban on nude dancing constitutional); Employment Division, Dept. of Human Resources v. Smith, 110 S. Ct. 1595 (1990) (applying new Free Exercise Clause standard to uphold state ban on peyote use).
As a lower court, we are bound by both the Supreme Court's choice of legal standard or test and by the result it reaches under that standard or test. As Justice Kennedy has stated, courts are bound to adhere not only to results of cases, but also "to their explications of the governing rules of law." County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) (Kennedy, J., dissenting); see also Marks v. United States, 430 U.S. 188, 194 (1977) (previous case provided "governing standards"). Our system of precedent or stare decisis is thus based on adherence to both the reasoning and result of a case, and not simply to the result alone. This distinguishes the American system of precedent, sometimes called "rule stare decisis," from the English system, which historically has been limited to following the results or disposition based on the facts of a case and thus referred to as "result stare decisis." See Note, The Precedential Value of Supreme Court Pluralty Decisions, 80 Colum. L. Rev. 756, 757 n.7 (1980) ("The American system of precedent places substantially greater reliance on the reasoning component of judicial decisions than, for example, the British system, where the House of Lords issues individual opinions with the understanding that only the specific result will have precedential force."); see generally R. Aldisert, The Judicial Process 618-35, 777-801 (1976).*fn6
Like lower courts, the Supreme Court applies principles of stare decisis and recognizes an obligation to respect both the standard announced and the result reached in its prior bases. Unlike lower courts, the Supreme Court is free to change the standard or result from one of its earlier cases when it finds it to be "unsound in principle [or] unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985). Accordingly, when a majority of the Justices announce in the course of deciding a case that they are substituting a new standard or result for that used in a prior case, the substitution is effected, and the lower courts are thereafter bound to follow the new standard or result. See, e.g., Employment Division, Dept. of Human Resources v. Smith, 110 S. Ct. 1595 (1990); Vandiver v. Hardin County Board of Education, 925 F.2d 927 (6th Cir. 1991) (applying new Smith test).
Occasionally, the Supreme Court's decision in a case reveals that a standard established in an earlier case no longer commands the allegiance of a majority of the Justices, but also reveals that no single substitute is endorsed by that majority of the Justices. Thereafter, the lower courts must determine whether to apply the old standard or, if not, what standard to apply. Fortunately, the Supreme Court has instructed the lower courts on how to resolve these issues.
Marks v. United States, 430 U.S. 188 (1977), was a criminal prosecution under a statute barring the interstate transportation of obscene materials. The Court had previously established that the statute was to be interpreted in accordance with the definition of obscenity fashioned by the Supreme Court under the Free Speech Clause of the First Amendment. In response to a contention based on the Ex Post Facto Clause, the Supreme Court in Marks had to determine what the law of the land regarding obscenity had been at the time of the defendant's alleged offense. It therefore reviewed its more recent obscenity jurisprudence. In Roth v. United States,, 354 U.S. 476, 489 (1957), the Court had declared the test to be "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. Some years later in Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality opinion joined only by three Justices announced that a work is not obscene unless "three elements . . . coalesce:"
It must be established that (a) the dominant theme of the material taken as a whole appears to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.
383 U.S. at 418. The plurality opinion in Memoirs decided that Fanny Hill was not obscene when judged by this standard and, accordingly, that the defendants' conviction had to be overturned. Three additional Justices concurred in this result but did so utilizing different rules of law: two stated that the First Amendment shields all speech including obscenity; one stated that the First Amendment protects all but "hard core pornography." Three Justices dissented.
The Marks Court was required to determine whether the legal standard announced in Roth had remained the law of the land after Memoirs or whether it had been superseded by a new standard in Memoirs. Despite the fact that no new legal standard had [ILLEGIBLE WORD] the allegiance of a majority of the Justices in Memoirs, the Marks Court held that Roth's standard did not survive Memoirs because a majority of Justices in Memoirs rejected the Roth standard. Marks thus stands for a very important proposition: a legal standard endorsed by the Court ceases to be the law of the land when a majority of the Court in a subsequent case declines to apply it, even if that majority is composed of Justices who disagree on what the proper standard should be.
Having decided that the Roth standard had ceased to control, the Marks Court also determined what standard had taken its place. The Court concluded that the Memoirs plurality opinion had become the law of the land. The court explained that "when a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Marks, 430 U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). The Justices in the plurality in Memoirs were those who concurred on the narrowest grounds.
Thus, Marks stands for a second important proposition: the controlling opinion in a splintered decision is that of the Justice or Justices who concur on the "narrowest grounds." The principal objective of this Marks rule is to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent. This objective requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases and that this standard, when properly applied, produce results with which a majority of the Justices in the case articulating the standard would agree. In a run-of-the-mill case where a majority of the Justices endorse a single legal standard, see, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971), lower courts simply follow that standard. In splintered decisions such as Memoirs where no single rationale "enjoys the assent of five Justices," the situation becomes more complex, but the controlling principle is the same. Where a Justice or Justices concurring in the judgment in such a case articulates a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree, that standard is the law of the land. In a constitutional case where (1) there is a 5-4 decision or where there are only two opinions in the majority and (2) the majority votes to uphold a law as constitutional, the "narrowest grounds" principle will identify as authoritative the standard articulated by a Justice or Justices that would uphold the fewest laws as constitutional. Conversely, in a constitutional case where (1) there is a 5-4 split or there are only two opinions in the majority and (2) the majority strikes down a law as unconstitutional, the authoritative standard will be that which would invalidate the fewest laws as unconstitutional.*fn7
In splintered Supreme Court decisions where there has been a common denominator standard that would necessarily produce results with which a majority of the Justices from the controlling case would agree, the Supreme Court and the lower courts have consistently identified as binding precedent the opinion setting forth that standard. See Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (identifying three-Justice plurality opinion from Furman v. Georgia, 428 U.S. 238 (1972), as binding); S.J. Groves & Sons Co. v. Fulton County, 920 F.2d 752 (11th Cir. 1991) (following Chief Justice Burger's opinion from Fullilove v. Klutznick, 448 in U.S. 448 (1980)); Lundblad v. Celeste, 874 F.2d 1097 (6th Cir. 1989) (following Justice Stewart's opinion in Elrod v. Burns, 427 U.S. 347 (1976)); Stegmaier v. Trammell, 597 F.2d 1027 (5th Cir. 1979) (same); Islamic Center of Mississippi, Inc. v. City of Starksville, 876 F.2d 465 (5th Cir. 1989) (following Justice O'Connor's opinion in Pennsylvania v. Delaware Valley Citizens Council or Clean Air, 483 U.S. 711 (1987) ("Delaware Valley II"); Student Public Interest Research, Group of New Jersey, Inc. v. AT&T Bell Laboratories, 842 F.2d 1436 (3d Cir. 1988) (same).*fn8
The binding opinion from a splintered decision is as authoritative for lower courts as a nine-Justice opinion. While the opinion's symbolic and perceived authority, as well as its duration, may be less, that makes no difference for a lower court. This is true even if only one Justice issues the binding opinion. In Blum v. Witco Chemical Corp., 888 F.2d 975, 981 (3d Cir. 1989), for example, we concluded, as has every other court of appeals to address the issue, that Justice O'Connor's concurring opinion in Delaware Valley II governed subsequent counsel fee cases even though no other Justice joined that opinion. We acknowledged that, "although there is some awkwardness in attributing precedential value to an opinion of one Supreme Court justice to which no other justice adhered, it is the usual practice when that is the determinative opinion." Blum, 888 F.2d at 981.
In sum, the effect of following the wrong opinion from a splintered decision is the same as affirmatively declaring that a Supreme Court majority opinion is not binding. By following the opinion that comports with the Marks principle, we respect the decision of a majority of the Court and thus fulfill our obligation to comply with decisions of the Supreme Court.
With this background, we turn to the Supreme Court's abortion jurisprudence to determine whether the strict scrutiny legal standard endorsed by the Court in Roe, Akron and Thornburgh remains the applicable standard after Webster and Hodgson. The primary issue in Webster was the constitutionality of Missouri's viability testing provision. The five Justices in the majority issued three opinions in upholding that viability testing provision. Chief Justice Rehnquist's opinion, joined by Justices White and Kennedy, upheld the provision under the "permissibly furthers" standard, the equivalent of rational basis review. Justice Scalia concurred, similarly rejecting strict scrutiny review of abortion regulations and arguing that Roe should be explicitly overruled. The four Justices in dissent would have applied the traditional strict scrutiny test.*fn9
In her concurring opinion, Justice O'Connor used the undue burden standard that she had articulated in past dissents. She concluded that Missouri's viability testing requirement was constitutional because it did not impose an undue burden on a woman's abortion decision and was rationally related to a legitimate state interest. She stated:
It is clear to me that requiring the performance of examinations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be medically imprudent to do so, does not impose an undue burden on a woman's abortion decision. On this ground alone I would reject the suggestion that § 188.029 as interpreted is unconstitutional.
Webster, 492 U.S. at 530 (O'Connor, J., concurring) (emphasis added).*fn10
Hodgson was decided in a similar manner. There the Court addressed the constitutionality of a two-parent notification requirement without a judicial bypass option and a two-parent notification requirement with a judicial bypass option. Five Justices--Justices O'Connor, Brennan, Marshall, Blackmun, and Stevens--held that a two-parent notification statute without a judicial bypass procedure was unconstitutional. Justice O'Connor found that the regulation caused an undue burden and failed to survive strict scrutiny review. She articulated the standard as follows:
It has been my understanding in this area that "if the particular regulation does not 'unduly burden' the fundamental right, . . . then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose." Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 453 (1983) (O'Connor, J., dissenting); see also Webster v. Reproductive Health Services, 492 U.S. , (1989) (O'Connor, J., concurring in part and concurring in judgment). . . . I agree with Justice Stevens that Minnesota has offered no sufficient justification for its interference with the family's decisionmaking processes created by subdivision 2--two-parent notification.
Hodgson, 110 S. Ct. at 2949-50 (O'Connor, J., concurring). Three of the other four Justices in the majority applied strict scrutiny review without determining as a threshold matter whether the regulation caused an undue burden. Justice Stevens agreed that the statute was unconstitutional, noting that "under any analysis, the Minnesota statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests." Id. at 2937 (opinion of Stevens, J.). He concluded both that the state had no legitimate interest in assuring that a particular individual parent participate in the child's abortion decision and that requiring the minor to notify both parents did not further the state's interest in seeing that a minor's abortion decision be informed. Id. at 2937, 2945. The four dissenters would have applied rational basis review and upheld the provision.
Also in Hodgson, five Justices--Justice O'Connor, Chief Justice Rehnquist, and Justices White, Scalia, and Kennedy--held that a two-parent notification requirement with a judicial bypass option was constitutional. Justice O'Connor concluded that it did not cause an undue burden and passed rational basis review:
In a series of cases, this Court has explicitly approved judicial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion. In Danforth, the Court stated that the "primary constitutional deficiency lies in [the notification statute's] imposition of an absolute limitation on the minor's right to obtain an abortion. . . . Subdivision 6 passes constitutional muster because the interference with the internal operation of the family required by subdivision 2 simply does not exist where the minor can avoid notifying one or both parents by use of the bypass procedure. Hodgson, 110 S. Ct. 2950-51 (O'Connor, J., concurring) (emphasis added) (citations omitted). The other four Justices in the majority on this issue in Hodgson found that the statute passed rational basis review without first deciding if it caused an undue burden. The dissenters would have used strict scrutiny and struck down the provision.
Justice O'Connor thus concurred in Webster and on one issue in Hodgson by holding that an abortion regulation that imposes no undue burden on a woman's decision to have an abortion does not violate the Due Process Clause so long as it is rationally related to a legitimate state interest. While the views of the other Justices concurring in the judgment on those issues differed from those of Justice O'Connor, all of them would uphold as constitutional any regulation meeting that standard.
Moreover, Justice O'Connor concurred in the Court's judgment on the other issue in Hodgson on the ground that an abortion regulation that imposes an undue burden on the decision to abort violates the Due Process Clause if does not meet the strict scrutiny standard. Here also, the other Justices concurring in the judgment on this issue did not join her opinion, but they would strike down as unconstitutional any regulations struck down under the undue burden standard.
In these circumstances, we conclude that it would be inconsistent with the teachings of Marks for lower courts to apply the strict scrutiny test of Roe, Akron, and Thornburgh to all abortion regulations. We also conclude that only by applying the undue burden standard of review, that is, only by applying strict scrutiny review to regulations that impose an undue burden and rational basis review to those which do not, can we remain faithful to Marks. Only by following the rationale of Justice O'Connor's concurring opinions will the lower courts decide abortion regulation cases in a way consistent with the way the Court decided them in Webster and Hodgson.
Having concluded that the undue burden standard is binding on us, one issue of stare decisis remains: Are we required to follow results reached by the Supreme Court in cases prior to Webster and Hodgson even though we are not bound by the rationale which produced those results? In the instant case, this issue is relevant because the Supreme Court, engaging in strict scrutiny review in Akron and Thornburgh, struck down informed consent provisions almost identical to the provisions at issue here. If we were constrained to follow the results reached in Akron and Thornburgh, we would hold unconstitutional the informed consent provisions of the Pennsylvania Act. We are convinced, however, that such a course would be improper.
It would be anomalous if the results reached under a constitutional standard remained binding after the standard or test was repudiated. To take a variation*fn11 of a familiar constitutional story, suppose that the Court in Brown v. Board of Education 347 U.S. 483 (1954), had required that states no longer run segregated school systems by repudiating the Plessy separate but equal doctrine and stating that the Equal Protection Clause forbids invidious racial classifications by government. Although Brown of course involved schools, a lower court in the aftermath would apply that principle to all racial classifications by government regardless of whether before Brown the Supreme Court had upheld racial classifications in the particular context at issue. Thus, if pre- Brown, the Court had stated that state-segregated public pools did not violate the Equal Protection Clause, a lower court faced with a challenge to state-segregated pools after the Brown decision would apply the new principle to pools rather than upholding the segregated pools on the basis of the result reached by the Supreme Court under the discarded standard.
In order to change course in a particular area, it simply is unnecessary for the Supreme Court to go case-by-case through fact patterns that the Court had previously addressed under a repudiated standard. If the standard is replaced, decisions reached under the old standard are not binding.*fn12 We thus conclude that a change in the legal test or standard governing a particular area is a change binding on lower courts that makes results reached under a repudiated legal standard no longer binding.*fn13 In sum, Justice O'Connor's undue burden standard is the law of the land, and we will apply that standard to all provisions of the Pennsylvania Act at issue in this appeal.
An abortion regulation can infringe upon the abortion right in at least seven ways: (1) causing delay before the abortion is performed; (2) raising the monetary cost of an abortion; (3) reducing the availability of an abortion by directly or indirectly causing a decrease in the number of legal abortion providers; (4) causing or forcing the woman to receive information she has not sought; (5) causing the woman to find the person or persons whom the state has required that she notify or obtain consent from; (6) causing the woman to endure any negative or hostile response from a person whom the state has required the woman to notify or obtain consent from; and (7) taking away the power to decide whether to have an abortion by giving another person, usually a parent or spouse, a veto power on the abortion decision. Almost all abortion regulations implicate the first three of these; informed consent requirements also involve the fourth; and notice and consent statutes also implicate the fifth, sixth, and seventh.
A review of the abortion case law, and Webster and Hodgson in particular, suggest that no undue burden is caused by abortion regulations that do not have a "severe" or "drastic" impact upon time, cost, or the number of legal providers of abortions. Webster, 492 U.S. at 529-30 (O'Connor, J., concurring); Thornburgh, 476 U.S. at 827-33 (O'Connor, J., dissenting); Akron, 462 U.S. at 464-67, 472-74 (O'Connor, J., dissenting). Similarly, the case law indicates that a state's requirement that abortion providers communicate information to a woman, which is typically in the form of an informed consent requirement, will not constitute an undue burden if the information that the abortion provider must give is relevant, accurate, and non-inflammatory. Thornburgh, 476 U.S. at 830-32 (O'Connor, J., dissenting).*fn14
The primary manner in which an abortion regulation can constitute an undue burden, other than by banning some or all previability abortions, is by taking away the woman's unilateral power to decide whether to have a previability abortion. Thus, a regulation in which the state gives a veto power to the woman's husband or, for a minor woman, to a parent constitutes an undue burden. See Hodgson, 110 S. Ct. at 2949-50 (O'Connor, J., concurring); Akron, 462 U.S. at 464 (O'Connor, J., dissenting); Bellotti II, 443 U.S. at 646-48; Danforth, 428 U.S. at 67-72. However, a parental consent or notice provision combined with an adequate judicial bypass procedure does not constitute an undue burden. See Hodgson, 110 S. Ct. at 2950-51 (O'Connor, J., concurring).
With this overall orientation, we turn now to the individual provisions of the Act. We may overrule the district court's factual findings based on the evidence before it only when clearly erroneous. We exercise plenary review, however, over the district court's determination of constitutionality and thus over whether the facts found regarding the effect of a particular statutory provision constitute an "undue burden." We also exercise plenary review over the question whether a provision passes strict scrutiny or rational basis review. A. The Medical Emergency Exception
We first address an issue that would affect virtually all of our later analysis if not resolved at the outset. Section 3203 of the Act defines the term ...