462 U.S. 416 (1983), argued 30 Nov. 1982, decided 15 June 1983 by vote of 6 to 3; Powell for the Court, O’Connor, with White and Rehnquist, in dissent. The Court invalidated a number of restrictions imposed by the city of Akron, Ohio, on abortion: a ban on performing second-trimester abortions in clinics rather than hospitals, a requirement that physicians provide detailed information about abortions to women before they signed consent forms, and a twenty-four-hour waiting period between giving consent and having an abortion. The Court said that the hospital requirement increased the cost of abortions without a significant increase in the woman's safety, that the information specified by the ordinance was designed to persuade the woman not to have an abortion rather than to inform her about the procedure, and that the waiting period increased costs by requiring two trips and was unnecessarily inflexible.
Justice Sandra Day O’Connor wrote her first major abortion opinion in this case. She criticized the trimester approach adopted in Roe v. Wade as rigid and likely to come under strain as medical technology pushed the time of viability back into the second trimester or even earlier. She proposed that regulations of abortion be permitted unless they placed an “undue burden” on a woman's decision. For her, neither the hospitalization nor the waiting period did so, because abortions were available in local hospitals and the waiting period was “a small cost to impose to ensure that the woman's decision is well-considered in light of its certain and irreparable consequences on fetal life” (p. 474). With O’Connor in the majority, the justices also invoked the “undue burden” principle in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) while sustaining a Pennsylvania law that had many of the same features of the Akron ordinance. The justices refused, however, to renounce their decision in Roe.
Mark V. Tushnet