City of Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416 (1983)

Roe recognized that the State possesses important and legitimate interests in protecting maternal health and the potentiality of human life. These “separate and distinct” interests were held to grow “in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’ ” 410 U. S., at 162-163. The state interest in maternal health was said to become compelling “at approximately the end of the first trimester.” Id., at 163. Before that time, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Id., at 164. After the end of the first trimester, “a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” Id., at 163. The Court noted that “in the light of present *454medical knowledge . . . mortality in abortion may be less than mortality in normal childbirth” during the first trimester of pregnancy. Ibid. The state interest in potential human life was held to become compelling at “viability,” defined by the Court as that point "at which the fetus ... [is] potentially able to live outside the mother’s womb, albeit with artificial aid.” Roe, 410 U. S., at 160 (footnote omitted). Based on the Court’s review of the contemporary medical literature, it placed viability at about 28 weeks, but acknowledged that this point may occur as early as 24 weeks. After viability is reached, the State may, according to Roe, proscribe abortion altogether, except when it is necessary to preserve the life and health of the mother. See id., at 163-164. Since Roe, the Court has held that Roe “left the point [of viability] flexible for anticipated advancements in medical skill.” Colautti v. Franklin, 489 U. S. 379, 387 (1979). The Court has also identified a state interest in protection of the young and “familial integrity” in the abortion context. See, e. g., H. L. v. Matheson, 450 U. S. 398, 411 (1981).

Although the Court purports to retain the trimester approach as “a reasonable legal framework for limiting” state regulatory authority over abortions, ante at 429, n. 11, the Court expressly abandons the Roe view that the relative rates of childbirth and abortion mortality are relevant for determining whether second-trimester regulations are reasonably related to maternal health. Instead, the Court decides that a health regulation must not “depart from accepted medical practice” if it is to be upheld. Ante, at 431. The State must now “make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered.” Ante, at 434 (emphasis added).

The Court holds that the summary affirmance in Gary-Northwest Indiana Women’s Services, Inc. v. Bowen, 496 F. Supp. 894 (ND Ind. 1980) (three-judge court), aff’d sub nom. Gary-Northwest Indiana Women’s Services, Inc. v. Orr, 451 U. S. 934 (1981), is not, as the court below thought, binding precedent on the hospitalization issue. See ante, at 433, n. 18. Although the Court reads Gary-Northwest to be decided on the alternative ground that the plaintiffs failed to prove the safety of second-trimester abortions, ante, at 433, n. 18, the Court simply ignores the fact that the District Court in Gary-Northwest held that “even if the plaintiffs could prove birth more dangerous than early second trimester D&E abor*456tions,” that would not matter insofar as the constitutionality of the regulations were concerned. See 496 F. Supp., at 903 (emphasis added).

Irrespective of the difficulty of the task, legislatures, with their superior factfinding capabilities, are certainly better able to make the necessary judgments than are courts.

One study shows that infants born alive with a gestational age of less than 25 weeks and weight between 500 and 1,249 grams have a 20% chance of survival. See Phillip, Little, Polivy, & Lucey, Neonatal Mortality Risk for the Eighties: The Importance of Birth Weight/Gestational Age Groups, 68 Pediatrics 122 (1981). Another recent comparative study shows that preterm infants with a weight of 1,000 grams or less born in one hospital had a 42% rate of survival. Kopelman, The Smallest Preterm Infants: Reasons for Optimism and New Dilemmas, 132 Am. J. Diseases of Children 461 (1978). An infant weighing 484 grams and having a gestational age of 22 weeks at birth is now thriving in a Los Angeles hospital, and the attending physician has stated that the infant has a “95% chance of survival.” Washington Post, Mar. 31, 1983, p. A2, col. 2. The aborted fetus in Simopoulos v. Virginia, post, p. 506, weighed 495 grams and had a gestational age of approximately 22 weeks. Recent developments promise even greater success in overcoming the various respiratory and immunological neonatal complications that stand in the way of increased fetal viability. See, e. g., Beddis, Collins, Levy, Godfrey, & Silverman, New Technique for Servo-Control of Arterial Oxygen Tension in Preterm Infants, 54 Archives of Disease in Childhood 278 (1979). “There is absolutely no question that in the current era there has been a sustained and progressive improvement in the outlook for survival of small premature infants.” Stern, Intensive Care of the Pre-Term Infant, 26 Danish Med. Bull. 144 (1979).

Interestingly, the Court in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976), upheld a recordkeeping requirement as well as the consent provision even though these requirements were imposed on first-trimester abortions and although the State did not impose comparable requirements on most other medical procedures. See id., at 65-67, 79-81. Danforth, then, must be understood as a retreat from the position ostensibly adopted in Roe that the State had no compelling interest in regulation during the first trimester of pregnancy that would justify restrictions imposed on the abortion decision.

For example, the 1982 ACOG Standards, on which the Court relies so heavily in its analysis, provide that physicians performing first-trimester abortions in their offices should provide for prompt emergency treatment or hospitalization in the event of any complications. See ACOG Standards, at 54. ACOG also prescribes that certain equipment be available for office abortions. See id., at 57. I have no doubt that the State has a compelling interest to ensure that these or other requirements are met, and that this legitimate concern would justify state regulation for health reasons even in the first trimester of pregnancy.

See Bellotti v. Baird, 428 U. S. 132, 147 (1976) (Bellotti I) (State may not “impose undue burdens upon a minor capable of giving an informed consent.” In Bellotti I, the Court left open the question whether a judicial hearing would unduly burden the Roe right of an adult woman. See 428 U. S., at 147); Bellotti v. Baird, 443 U. S. 622, 640 (1979) (Bellotti II) *462(opinion of Powell, J.) (State may not “unduly burden the right to seek an abortion”); Harris v. McRae, 448 U. S. 297, 314 (1980) (“The doctrine of Roe v. Wade, the Court held in Maher, 'protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy,’ [432 U. S.], at 473-474, such as the severe criminal sanctions at issue in Roe v. Wade, supra, or the absolute requirement of spousal consent for an abortion challenged in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52”); Beal v. Doe, 432 U. S. 438, 446 (1977) (The state interest in protecting potential human life “does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference . . .”); Carey v. Population Services International, 431 U. S. 678, 705 (1977) (Powell, J., concurring in part and concurring in judgment) (“In my view, [Roe and Griswold v. Connecticut, 381 U. S. 479 (1965),] make clear that the [com--pelling state interest] standard has been invoked only when the state regulation entirely frustrates or heavily burdens the exercise of constitutional rights in this area. See Bellotti v. Baird, 428 U. S. 132, 147 (1976)”). Even though the Court did not explicitly use the “unduly burdensome” standard in evaluating the informed-consent requirement in Planned Parenthood of Central Missouri v. Danforth, supra, the informed-consent requirement for first-trimester abortions in Danforth was upheld because it did not “unduly burde[n] the right to seek an abortion.” Bellotti I, supra, at 147.

The only case in which the Court invalidated regulations that were not “undue burdens” was Doe v. Bolton, 410 U. S. 179 (1973), which was decided on the same day as Roe. In Doe, the Court invalidated a hospitalization requirement because it covered first-trimester abortion. The Court *465also invalidated a hospital accreditation requirement, a hospital-committee approval requirement, and a two-doctor concurrence requirement. The Court clearly based its disapproval of these requirements on the fact that the State did not impose them on any other medical procedure apart from abortion. But the Court subsequent to Doe has expressly rejected the view that differential treatment of abortion requires invalidation of regulations. See Danforth, 428 U. S., at 67, 80-81; Maher v. Roe, 432 U. S. 464, 480 (1977); Harris, 448 U. S., at 325. See also Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476.

In his amicus curiae brief in support of the city of Akron, the Solicitor General of the United States argues that we should adopt the “unduly burdensome” standard and in doing so, we should “accord heavy deference to the legislative judgment” in determining what constitutes an “undue burden.” See Brief for the United States as Amicus Curiae 10. The “unduly burdensome” standard is appropriate not because it incorporates deference to legislative judgment at the threshold stage of analysis, but rather because of the limited nature of the fundamental right that has been recognized in the abortion cases. Although our cases do require that we “pay careful attention” to the legislative judgment before we invoke strict scrutiny, see e. g., Columbia Broadcasting System, Inc. v. Democratic Na *466 tional Committee, 412 U. S., at 103, it is not appropriate to weigh the state interests at the threshold stage.

The Court has never required that state regulation that burdens the abortion decision be “narrowly drawn” to express only the relevant state interest. In Roe, the Court mentioned “narrowly drawn” legislative enactments, 410 U. S., at 155, but the Court never actually adopted this *468standard in the Roe analysis. In its decision today, the Court fully endorses the Roe requirement that a burdensome health regulation, or as the Court appears to call it, a “significant obstacle,” ante, at 434, be “reasonably related” to the state compelling interest. See ante, at 430-431, 435, 438. The Court recognizes that “[a] State necessarily must have latitude in adopting regulations of general applicability in this sensitive area.” Ante, at 434. See also Simopoulos v. Virginia, post, at 516. Nevertheless, the Court fails to apply the “reasonably related” standard. The hospitalization requirement “reasonably relates” to its compelling interest in protection and preservation of maternal health under any normal understanding of what “reasonably relates” signifies. The Court concludes that the regulation must fall because “it appears that during a substantial portion of the second trimester the State’s regulation ‘depart[s] from accepted medical practice.’ ” Ante, at 434. It is difficult to see how the Court concludes that the regulation “departís] from accepted medical practice” during “a substantial portion of the second trimester,” ibid., in light of the fact that the Court concludes that D&E abortions may be performed safely in an outpatient clinic through 16 weeks, or 4 weeks into the second trimester. Ante, at 436-437. Four weeks is hardly a “substantial portion” of the second trimester.

In my view, no decision of this Court has yet held that parental notification in the case of mature minors is unconstitutional. Although the plurality opinion of Justice Powell in Bellotti II suggested that the state statute in that case was unconstitutional because, inter alia, it failed to provide all minors with an opportunity “to go directly to a court without first consulting or notifying her parents,” 443 U. S., at 647, the Court in H. L. v. Matheson held that unemancipated and immature minors had “no constitutional right to notify a court in lieu of notifying their parents.” 450 U. S., at 412, n. 22. Furthermore, the Court in H. L. v. Matheson expressly did not decide that a parental notification requirement would be unconstitutional if the State otherwise permitted mature minors to make abortion decisions free of parental or judicial “veto.”. See id., at 406-407.

Section 1870.06(B) requires that the attending physician orally inform the pregnant woman: (1) that she is pregnant; (2) of the probable number of weeks since conception; (3) that the unborn child is a human being from the moment of conception, and has certain anatomical and physiological characteristics; (4) that the unborn child may be viable and, if so, the physician has a legal responsibility to try to save the child; (5) that abortion is a major surgical procedure that can result in serious physical and psychological complications; (6) that various agencies exist that will provide the pregnant woman with information about birth control; and (7) that various agencies exist that will assist the woman through pregnancy should she decide not to undergo the abortion. Section 1870.06(C) requires the attending physician to inform the woman of risks associated with her particular pregnancy and proposed abortion technique, as well as to furnish information that the physician deems relevant “in his own medical judgment.”

The Court in Danforth did not even view the informed-consent requirement as having a “legally significant impact” on first-trimester abortions that would trigger the Roe and Doe proscriptions against state interference in the decision to seek a first-trimester abortion. See 428 U. S., at 81 (recordkeeping requirements).

Assuming, arguendo, that the Court now decides that Danforth, Bel-lotti II, and H. L. v. Matheson were incorrect, and that the informed-consent provisions do burden the right to seek an abortion, the Court inexplicably refuses to determine whether this “burden” “reasonably relates” to legitimate state interests. Ante, at 430 (quoting Roe, 410 U. S., at 163). Rather, the Court now decides that an informed-consent provision must be justified by a “vital state need” before it can be upheld. See ante, at 448.

This is not to say that the informed-consent provisions may not violate the First Amendment rights of the physician if the State requires him or her to communicate its ideology. See Wooley v. Maynard, 430 U. S. 705 (1977). However, it does not appear that Akron Center raised any First Amendment argument in the court below. See Brief for Akron Center for Reproductive Health, Inc., in No. 79-3701 (CA6), pp. 18-23; Reply Brief for Akron Center for Reproductive Health, Inc., in No. 79-3701 (CA6), pp. 26-33.

On the basis of this analysis of the waiting-period requirement, the Court charges that “the dissent would uphold virtually any abortion-inhibiting regulation . . . .” Ante, at 421, n. 1. The waiting-period requirement is valid because it imposes a small cost when all relevant factors are taken into consideration. This is precisely the reasoning that Justice Powell employs in upholding the pathology-report requirement in Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476 (report requirement imposes a “comparatively small additional cost,” post, at 489).

The Court of Appeals believed that it was bound by Gary-Northwest Indiana Women’s Services, Inc. v. Bowen, 496 F. Supp. 894 (ND Ind. 1980) (three-judge court), summarily aff’d sub nom. Gary-Northwest Indiana Women’s Services, Inc. v. Orr, 451 U. S. 934 (1981), in which an Indiana second-trimester hospitalization requirement was upheld. Although the District Court in that case found that “Roe does not render the constitutionality of second trimester regulations subject to either the availability of abortions or the improvements in medical techniques and skills,” 496 F. Supp., at 901-902, it also rested the decision on the alternative ground that the plaintiffs had failed to provide evidence to support their theory that it was unreasonable to require hospitalization for dilatation and evacuation abortions performed early in the second trimester. See id., at 902-903. Our summary affirmance therefore is not binding precedent on the hospitalization issue. See Illinois State Board of Elections v. Socialist Workers Party, 440 U. S. 173, 180-181, 182-183 (1979).

We also found that the additional requirement that the licensed hospital be accredited by the JCAH was “not ‘based on differences that are reasonably related to the purposes of the Act in which it is found.’ ” Doe, 410 U. S., at 194 (quoting Morey v. Doud, 354 U. S. 457, 465 (1957)). We concluded that, in any event, Georgia’s hospital requirement was invalid because it applied to first-trimester abortions.

National statistics'indicate a similar cost difference. In 1978 the average clinic charged $284 for a D&E abortion, whereas the average hospital charge was $435. The hospital charge did not include the physician’s fee, which ran as high as $300. See Rosoff, The Availability of Second-Trimester Abortion Services in the United States, published in Second-Trimester Abortion: Perspectives After a Decade of Experience 35 (G. Berger, W. Brenner, & L. Keith eds. 1981) (hereinafter Second-Trimester Abortion).

The Akron situation is not unique. In many areas of this country, few, if any, hospitals perform second-trimester abortions. See, e. g., Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 664 F. 2d, at 689 (second-trimester D&E abortions available at only one hospital in Missouri); Wolfe v. Stumbo, 519 F. Supp. 22, 23 (WD Ky. 1980) (no elective post-first-trimester abortion performed in Kentucky hospitals); Margaret S. v. Edwards, 488 F. Supp. 181, 192 (ED La. 1980) (no hospitals in Louisiana perform abortions after first trimester).

The death-to-case ratio for all second-trimester abortions in this country fell from 14.4 deaths per 100,000 abortions in 1972 to 7.6 per 100,000 in 1977. See Tyler, Cates, Schulz, Selik, & Smith, Second-Trimester Induced Abortion in the United States, published in Second-Trimester Abortion 17-20.

At the time Roe was decided, the D&E procedure was used only to perform first-trimester abortions.

Instillation procedures, the primary means of performing a second-trimester abortion before the development of D&E, generally cannot be performed until approximately the 16th week of pregnancy because until that time the amniotic sac is too small. See Grimes & Cates, Dilatation and Evacuation, published in Second-Trimester Abortion 121.

See also Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, supra, at 690, n. 6 (discussing testimony by Dr. Willard Cates, Chief of Federal Abortion Surveillance for the National Centers for Disease Control, that D&E second-trimester abortions are as safely performed outside of hospitals up to the 16th week); APHA Recommended Guide 654 (outpatient D&E is safer than all in-hospital non-D&E abortion procedures during the second trimester).

At trial Akron relied largely on the former position of the various medical organizations concerning hospitalization during the second trimester. See 651 F. 2d, at 1209. The revised position of the ACOG did not occur until after trial. Akron also argues that the safety of nonhospital D&E abortions depends on adherence to minimum standards such as those adopted by ACOG for free-standing surgical facilities, see ACOG Standards 51-62, and that there is no evidence that plaintiffs’ clinics operate in this manner. But the issue in this litigation is not whether these clinics would meet such stand*438ards if they were prescribed by the city. Rather, Akron has gone much further by banning all second-trimester abortions in all clinics, a regulation that does not reasonably further the city’s interest in promoting health. We continue to hold, as we did in Doe v. Bolton, that a State may, “from and after the end of the first trimester, adopt standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish.” 410 U. S., at 194-195. This includes standards designed to correct any deficiencies that Akron reasonably believes exist in the clinics’ present operation.

The city thus implies that its hospital requirement may be sustained because it is reasonable as applied to later D&E abortions or to all second-trimester instillation abortions. We do not hold today that a State in no circumstances may require that some abortions be performed in a full-service hospital. Abortions performed by D&E are much safer, up to a point in the development of the fetus, than those performed by instillation methods. See Cates & Grimes, Morbidity and Mortality, published in Second-Trimester Abortion 166-169. The evidence before us as to the need for hospitalization concerns only the D&E method performed in the early weeks of the second trimester. See 651 F. 2d, at 1208-1210.

In the United States during 1978, *82.1%* of all abortions from 13-15 weeks and 24.6% of all abortions from 16-20 weeks were performed by the D&E method. See Department of Health and Human Services, Centers for Disease Control, Abortion Surveillance: Annual Summary 1978, Table 14, p. 43 (1980).

The Court of Appeals upheld § 1870.05(A)’s notification requirement. See 651 F. 2d, at 1206. The validity of this ruling has not been challenged in this Court.

The Court’s primary holding in Matheson was that the pregnant minor who questioned Utah’s abortion consent requirement on the ground that it impermissibly applied to mature or emancipated minors lacked standing to raise that argument since she had not alleged that she or any member of her class was mature or emancipated. 450 U. S., at 406. No such standing problem exists here, however, as the physician plaintiff, who is subject to potential criminal liability for failure to comply with the requirements of § 1870.05(B), has standing to raise the claims of his minor patients. See *441 Danforth, 428 U. S., at 62; Doe v. Bolton, 410 U. S., at 188-189; Bellotti II, 443 U. S., at 627, n. 5 (plurality opinion).

The Ohio Juvenile Court has jurisdiction over any child “alleged to be a juvenile traffic offender, delinquent, unruly, abused, neglected, or dependent.” Ohio Rev. Code Ann. §2151.23 (Supp. 1982). The only category that arguably could encompass a pregnant minor desiring an abortion would be the “neglected” child category. A neglected child is defined as one “[wjhose parents, guardian or custodian neglects or refuses to provide him with proper or necessary subsistence, education, medical or surgical care, or other care necessary for his health, morals, or well being.” § 2151.03. Even assuming that the Ohio courts would construe these provisions as permitting a minor to obtain judicial approval for the “proper or necessary . . . medical or surgical care” of an abortion, where her parents had refused to provide that care, the statute makes no provision for a mature or emancipated minor completely to avoid hostile parental involvement by demonstrating to the satisfaction of the court that she is capable of exercising her constitutional right to choose an abortion. On the contrary, the statute requires that the minor’s parents be notified once a petition has been filed, §2151.28, a requirement that in the case of a mature minor seeking an abortion would be unconstitutional. See H. L. v. Matheson, 450 U. S., at 420 (Powell, J., concurring); id., at 428, n. 3 (MARSHALL, J., dissenting).

In particular, we have emphasized that a State’s interest in protecting immature minors and in promoting family integrity gives it a special interest in ensuring that the abortion decision is made with understanding and after careful deliberation. See, e. g., H. L. v. Matheson, 450 U. S., at 411; id., at 419-420 (Powell, J., concurring); id., at 421-424 (Stevens, J., concurring in judgment).

A State is not always foreclosed from asserting an interest in whether pregnancies end in abortion or childbirth. In Maher v. Roe, 432 U. S. 464 (1977), and Harris v. McRae, 448 U. S. 297 (1980), we upheld governmental spending statutes that reimbursed indigent women for childbirth but not abortion. This legislation to further an interest in preferring childbirth over abortion was permissible, however, only because it did not add any “restriction on access to abortions that was not already there.” Maher, supra, at 474.

This description must include, but not be limited to, “appearance, mobility, tactile sensitivity, including pain, perception or response, brain and heart function, the presence of internal organs and the presence of external members.” The District Court found that “there was much evidence that it is impossible to determine many of [these] items,.. . such as the ‘unborn child’s’ sensitivity to pain.” 479 F. Supp., at 1203.

The District Court found that “there was much evidence that rather than being ‘a major surgical procedure’ as the physician is required to state . . . , an abortion generally is considered a ‘minor surgical procedure.’” Ibid.

Section 1870.06(B)(5) requires the physician to state

Akron has made little effort to defend the constitutionality of §§ 1870.06(B)(3), (4), and (5), but argues that the remaining four subsections of the provision are valid and severable. These four subsections require that the patient be informed by the attending physician of the fact that she is pregnant, § 1870.06(B)(1), the gestational age of the fetus, § 1870.06(B)(2), the av '.ilability of information on birth control and adop*446tion, § 1870.06(B)(6), and the availability of assistance during pregnancy and after childbirth, § 1870.06(B)(7). This information, to the extent it is accurate, certainly is not objectionable, and probably is routinely made available to the patient. We are not persuaded, however, to sever these provisions from the remainder of § 1870.06(B). They require that all of the information be given orally by the attending physician when much, if not all of it, could be given by a qualified person assisting the physician. See infra, at 448-449.

We do not suggest that appropriate counseling consists simply of a recital of pertinent medical facts. On the contrary, it is clear that the needs of patients for information and an opportunity to discuss the abortion decision will vary considerably. It is not disputed that individual counseling should be available for those persons who desire or need it. See, e. g., National Abortion Federation Standards 1 (1981) (hereinafter NAF Standards); Planned Parenthood of Metropolitan Washington, D. C., Inc., Guidelines for Operation, Maintenance, and Evaluation of First Trimester Outpatient Abortion Facilities 5 (1980). Such an opportunity may be especially important for minors alienated or separated from their parents. See APHA Recommended Guide 654. Thus, for most patients, mere provision of a printed statement of relevant information is not counseling.

This Court’s consistent recognition of the critical role of the physician in the abortion procedure has been based on the model of the competent, conscientious, and ethical physician. See Doe, 410 U. S., at 196-197. We have no occasion in this case to consider conduct by physicians that may *449depart from this model. Cf. Danforth, 428 U. S., at 91-92, n. 2 (Stewart, J., concurring).

Cf. ACOG Standards 54 (“If counseling has been provided elsewhere, the physician performing the abortion should verity that the counseling has taken place”).

The importance of well-trained and competent counselors is not in dispute. See, e. g., APHA Recommended Guide 654 (“Abortion counselors may be highly skilled physicians as well as trained, sympathetic individuals working under appropriate supervision”); NAF Standards 2 (counselors must be trained initially at least in the following subjects: “sexual and reproductive health; abortion technology; contraceptive technology; short-term counseling skills; community resources and referrals; informed consent; agency policies and practices”).

This provision does not apply if the physician certifies in writing that “there is an emergency need for an abortion to be performed or induced such that continuation of the pregnancy poses an immediate threat and grave risk to the life or physical health of the pregnant woman.” §1870.12.

The ACOG recommends that a clinic allow “sufficient time for reflection prior to making an informed decision.” ACOG Standards 54. In contrast to § 1870.07’s mandatory waiting period, this standard recognizes that the time needed for consideration of the decision varies depending on *451the particular situation of the patient and how much prior counseling she has received.

In Fitzpatrick the District Court accepted Pennsylvania’s contention that its statute governing the “humane” disposal of fetal remains was designed only to prevent such “mindless dumping.” That decision is distinguishable because the statute did not impose criminal liability, but merely provided for the promulgation of regulations to implement the disposal requirement. See 401 F. Supp., at 572-573.

We are not persuaded by Akron’s argument that the word “humane” should be severed from the statute. The uncertain meaning of the phrase “humane and sanitary” leaves doubt as to whether the city would have enacted § 1870.16 with the word “sanitary” alone. Akron remains free, of course, to enact more carefully drawn regulations that further its legitimate interest in proper disposal of fetal remains.

Roe recognized that the State possesses important and legitimate interests in protecting maternal health and the potentiality of human life. These “separate and distinct” interests were held to grow “in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’ ” 410 U. S., at 162-163. The state interest in maternal health was said to become compelling “at approximately the end of the first trimester.” Id., at 163. Before that time, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Id., at 164. After the end of the first trimester, “a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” Id., at 163. The Court noted that “in the light of present *454medical knowledge . . . mortality in abortion may be less than mortality in normal childbirth” during the first trimester of pregnancy. Ibid. The state interest in potential human life was held to become compelling at “viability,” defined by the Court as that point "at which the fetus ... [is] potentially able to live outside the mother’s womb, albeit with artificial aid.” Roe, 410 U. S., at 160 (footnote omitted). Based on the Court’s review of the contemporary medical literature, it placed viability at about 28 weeks, but acknowledged that this point may occur as early as 24 weeks. After viability is reached, the State may, according to Roe, proscribe abortion altogether, except when it is necessary to preserve the life and health of the mother. See id., at 163-164. Since Roe, the Court has held that Roe “left the point [of viability] flexible for anticipated advancements in medical skill.” Colautti v. Franklin, 489 U. S. 379, 387 (1979). The Court has also identified a state interest in protection of the young and “familial integrity” in the abortion context. See, e. g., H. L. v. Matheson, 450 U. S. 398, 411 (1981).

Although the Court purports to retain the trimester approach as “a reasonable legal framework for limiting” state regulatory authority over abortions, ante at 429, n. 11, the Court expressly abandons the Roe view that the relative rates of childbirth and abortion mortality are relevant for determining whether second-trimester regulations are reasonably related to maternal health. Instead, the Court decides that a health regulation must not “depart from accepted medical practice” if it is to be upheld. Ante, at 431. The State must now “make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered.” Ante, at 434 (emphasis added).

The Court holds that the summary affirmance in Gary-Northwest Indiana Women’s Services, Inc. v. Bowen, 496 F. Supp. 894 (ND Ind. 1980) (three-judge court), aff’d sub nom. Gary-Northwest Indiana Women’s Services, Inc. v. Orr, 451 U. S. 934 (1981), is not, as the court below thought, binding precedent on the hospitalization issue. See ante, at 433, n. 18. Although the Court reads Gary-Northwest to be decided on the alternative ground that the plaintiffs failed to prove the safety of second-trimester abortions, ante, at 433, n. 18, the Court simply ignores the fact that the District Court in Gary-Northwest held that “even if the plaintiffs could prove birth more dangerous than early second trimester D&E abor*456tions,” that would not matter insofar as the constitutionality of the regulations were concerned. See 496 F. Supp., at 903 (emphasis added).

Irrespective of the difficulty of the task, legislatures, with their superior factfinding capabilities, are certainly better able to make the necessary judgments than are courts.

One study shows that infants born alive with a gestational age of less than 25 weeks and weight between 500 and 1,249 grams have a 20% chance of survival. See Phillip, Little, Polivy, & Lucey, Neonatal Mortality Risk for the Eighties: The Importance of Birth Weight/Gestational Age Groups, 68 Pediatrics 122 (1981). Another recent comparative study shows that preterm infants with a weight of 1,000 grams or less born in one hospital had a 42% rate of survival. Kopelman, The Smallest Preterm Infants: Reasons for Optimism and New Dilemmas, 132 Am. J. Diseases of Children 461 (1978). An infant weighing 484 grams and having a gestational age of 22 weeks at birth is now thriving in a Los Angeles hospital, and the attending physician has stated that the infant has a “95% chance of survival.” Washington Post, Mar. 31, 1983, p. A2, col. 2. The aborted fetus in Simopoulos v. Virginia, post, p. 506, weighed 495 grams and had a gestational age of approximately 22 weeks. Recent developments promise even greater success in overcoming the various respiratory and immunological neonatal complications that stand in the way of increased fetal viability. See, e. g., Beddis, Collins, Levy, Godfrey, & Silverman, New Technique for Servo-Control of Arterial Oxygen Tension in Preterm Infants, 54 Archives of Disease in Childhood 278 (1979). “There is absolutely no question that in the current era there has been a sustained and progressive improvement in the outlook for survival of small premature infants.” Stern, Intensive Care of the Pre-Term Infant, 26 Danish Med. Bull. 144 (1979).

Interestingly, the Court in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976), upheld a recordkeeping requirement as well as the consent provision even though these requirements were imposed on first-trimester abortions and although the State did not impose comparable requirements on most other medical procedures. See id., at 65-67, 79-81. Danforth, then, must be understood as a retreat from the position ostensibly adopted in Roe that the State had no compelling interest in regulation during the first trimester of pregnancy that would justify restrictions imposed on the abortion decision.

For example, the 1982 ACOG Standards, on which the Court relies so heavily in its analysis, provide that physicians performing first-trimester abortions in their offices should provide for prompt emergency treatment or hospitalization in the event of any complications. See ACOG Standards, at 54. ACOG also prescribes that certain equipment be available for office abortions. See id., at 57. I have no doubt that the State has a compelling interest to ensure that these or other requirements are met, and that this legitimate concern would justify state regulation for health reasons even in the first trimester of pregnancy.

See Bellotti v. Baird, 428 U. S. 132, 147 (1976) (Bellotti I) (State may not “impose undue burdens upon a minor capable of giving an informed consent.” In Bellotti I, the Court left open the question whether a judicial hearing would unduly burden the Roe right of an adult woman. See 428 U. S., at 147); Bellotti v. Baird, 443 U. S. 622, 640 (1979) (Bellotti II) *462(opinion of Powell, J.) (State may not “unduly burden the right to seek an abortion”); Harris v. McRae, 448 U. S. 297, 314 (1980) (“The doctrine of Roe v. Wade, the Court held in Maher, 'protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy,’ [432 U. S.], at 473-474, such as the severe criminal sanctions at issue in Roe v. Wade, supra, or the absolute requirement of spousal consent for an abortion challenged in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52”); Beal v. Doe, 432 U. S. 438, 446 (1977) (The state interest in protecting potential human life “does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference . . .”); Carey v. Population Services International, 431 U. S. 678, 705 (1977) (Powell, J., concurring in part and concurring in judgment) (“In my view, [Roe and Griswold v. Connecticut, 381 U. S. 479 (1965),] make clear that the [com--pelling state interest] standard has been invoked only when the state regulation entirely frustrates or heavily burdens the exercise of constitutional rights in this area. See Bellotti v. Baird, 428 U. S. 132, 147 (1976)”). Even though the Court did not explicitly use the “unduly burdensome” standard in evaluating the informed-consent requirement in Planned Parenthood of Central Missouri v. Danforth, supra, the informed-consent requirement for first-trimester abortions in Danforth was upheld because it did not “unduly burde[n] the right to seek an abortion.” Bellotti I, supra, at 147.

The only case in which the Court invalidated regulations that were not “undue burdens” was Doe v. Bolton, 410 U. S. 179 (1973), which was decided on the same day as Roe. In Doe, the Court invalidated a hospitalization requirement because it covered first-trimester abortion. The Court *465also invalidated a hospital accreditation requirement, a hospital-committee approval requirement, and a two-doctor concurrence requirement. The Court clearly based its disapproval of these requirements on the fact that the State did not impose them on any other medical procedure apart from abortion. But the Court subsequent to Doe has expressly rejected the view that differential treatment of abortion requires invalidation of regulations. See Danforth, 428 U. S., at 67, 80-81; Maher v. Roe, 432 U. S. 464, 480 (1977); Harris, 448 U. S., at 325. See also Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476.

In his amicus curiae brief in support of the city of Akron, the Solicitor General of the United States argues that we should adopt the “unduly burdensome” standard and in doing so, we should “accord heavy deference to the legislative judgment” in determining what constitutes an “undue burden.” See Brief for the United States as Amicus Curiae 10. The “unduly burdensome” standard is appropriate not because it incorporates deference to legislative judgment at the threshold stage of analysis, but rather because of the limited nature of the fundamental right that has been recognized in the abortion cases. Although our cases do require that we “pay careful attention” to the legislative judgment before we invoke strict scrutiny, see e. g., Columbia Broadcasting System, Inc. v. Democratic Na *466 tional Committee, 412 U. S., at 103, it is not appropriate to weigh the state interests at the threshold stage.

The Court has never required that state regulation that burdens the abortion decision be “narrowly drawn” to express only the relevant state interest. In Roe, the Court mentioned “narrowly drawn” legislative enactments, 410 U. S., at 155, but the Court never actually adopted this *468standard in the Roe analysis. In its decision today, the Court fully endorses the Roe requirement that a burdensome health regulation, or as the Court appears to call it, a “significant obstacle,” ante, at 434, be “reasonably related” to the state compelling interest. See ante, at 430-431, 435, 438. The Court recognizes that “[a] State necessarily must have latitude in adopting regulations of general applicability in this sensitive area.” Ante, at 434. See also Simopoulos v. Virginia, post, at 516. Nevertheless, the Court fails to apply the “reasonably related” standard. The hospitalization requirement “reasonably relates” to its compelling interest in protection and preservation of maternal health under any normal understanding of what “reasonably relates” signifies. The Court concludes that the regulation must fall because “it appears that during a substantial portion of the second trimester the State’s regulation ‘depart[s] from accepted medical practice.’ ” Ante, at 434. It is difficult to see how the Court concludes that the regulation “departís] from accepted medical practice” during “a substantial portion of the second trimester,” ibid., in light of the fact that the Court concludes that D&E abortions may be performed safely in an outpatient clinic through 16 weeks, or 4 weeks into the second trimester. Ante, at 436-437. Four weeks is hardly a “substantial portion” of the second trimester.

In my view, no decision of this Court has yet held that parental notification in the case of mature minors is unconstitutional. Although the plurality opinion of Justice Powell in Bellotti II suggested that the state statute in that case was unconstitutional because, inter alia, it failed to provide all minors with an opportunity “to go directly to a court without first consulting or notifying her parents,” 443 U. S., at 647, the Court in H. L. v. Matheson held that unemancipated and immature minors had “no constitutional right to notify a court in lieu of notifying their parents.” 450 U. S., at 412, n. 22. Furthermore, the Court in H. L. v. Matheson expressly did not decide that a parental notification requirement would be unconstitutional if the State otherwise permitted mature minors to make abortion decisions free of parental or judicial “veto.”. See id., at 406-407.

Section 1870.06(B) requires that the attending physician orally inform the pregnant woman: (1) that she is pregnant; (2) of the probable number of weeks since conception; (3) that the unborn child is a human being from the moment of conception, and has certain anatomical and physiological characteristics; (4) that the unborn child may be viable and, if so, the physician has a legal responsibility to try to save the child; (5) that abortion is a major surgical procedure that can result in serious physical and psychological complications; (6) that various agencies exist that will provide the pregnant woman with information about birth control; and (7) that various agencies exist that will assist the woman through pregnancy should she decide not to undergo the abortion. Section 1870.06(C) requires the attending physician to inform the woman of risks associated with her particular pregnancy and proposed abortion technique, as well as to furnish information that the physician deems relevant “in his own medical judgment.”

The Court in Danforth did not even view the informed-consent requirement as having a “legally significant impact” on first-trimester abortions that would trigger the Roe and Doe proscriptions against state interference in the decision to seek a first-trimester abortion. See 428 U. S., at 81 (recordkeeping requirements).

Assuming, arguendo, that the Court now decides that Danforth, Bel-lotti II, and H. L. v. Matheson were incorrect, and that the informed-consent provisions do burden the right to seek an abortion, the Court inexplicably refuses to determine whether this “burden” “reasonably relates” to legitimate state interests. Ante, at 430 (quoting Roe, 410 U. S., at 163). Rather, the Court now decides that an informed-consent provision must be justified by a “vital state need” before it can be upheld. See ante, at 448.

This is not to say that the informed-consent provisions may not violate the First Amendment rights of the physician if the State requires him or her to communicate its ideology. See Wooley v. Maynard, 430 U. S. 705 (1977). However, it does not appear that Akron Center raised any First Amendment argument in the court below. See Brief for Akron Center for Reproductive Health, Inc., in No. 79-3701 (CA6), pp. 18-23; Reply Brief for Akron Center for Reproductive Health, Inc., in No. 79-3701 (CA6), pp. 26-33.

On the basis of this analysis of the waiting-period requirement, the Court charges that “the dissent would uphold virtually any abortion-inhibiting regulation . . . .” Ante, at 421, n. 1. The waiting-period requirement is valid because it imposes a small cost when all relevant factors are taken into consideration. This is precisely the reasoning that Justice Powell employs in upholding the pathology-report requirement in Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476 (report requirement imposes a “comparatively small additional cost,” post, at 489).

Together with No. 81-1172, Akron Center for Reproductive Health, Inc., et al. v. City of Akron et al., also on certiorari to the same court.

Briefs of amici curiae urging reversal were filed by Delores V. Horan for Feminists for Life; and by Lynn D. Wardle for the United Families Foundation et al. Briefs of amici curiae urging affirmance were filed by Bruce J. En-nis, Jr., and Donald N. Bersoffior the American Psychological Association; *419and by Sylvia A. Law, Nadine Taub, and Ellen J. Winner for the Committee for Abortion Rights and Against Sterilization Abuse et al. Briefs of amici curiae were filed by M. Carolyn Cox and Lynn Bregman for the American College of Obstetricians and Gynecologists et al.; by David B. Hopkins for the American Public Health Association; by Dennis J. Horan, Victor G. Rosenblum, Patrick A. Trueman, and Thomas J. Marzen for Americans United for Life; for California Women Lawyers et al.; by Charles E. Rice for the Catholic League for Religious and Civil Rights; by Rhonda Copelon for Certain Religious Organizations; by Jack R. Bierig for the College of American Pathologists; by Ronald J. Suster for Lawyers for Life; by Alan Ernest for the Legal Defense Fund for Unborn Children; by Judith Levin for the National Abortion Federation; by Jack Greenberg, James M. Nabrit III, and Judith Reed for the NAACP Legal Defense and Educational Fund, Inc.; by Phyllis N. Segal, Judith I. Avner, and Jemera Rone for the National Organization for Women et al.; by Eve W. Paul and Dara Klassel for the Planned Parenthood Federation of America, Inc., et al.; by JamesArthur Gleason for Womankind, Inc.; by Nancy Reardan for Women Lawyers of Sacramento et al; and by Susan Frelich Appleton and Paul Brest for Certain Law Professors.