986
Opinion of Scalia, J.
tion make clear only that the standard is inherently manipulable and will prove hopelessly unworkable in practice.
The joint opinion explains that a state regulation imposes an "undue burden" if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Ante, at 877; see also ante, at 877-879. An obstacle is "substantial," we are told, if it is "calculated[,] [not] to inform the woman's free choice, [but to] hinder it." Ante, at 877.4 This latter statement cannot
4 The joint opinion further asserts that a law imposing an undue burden on abortion decisions is not a "permissible" means of serving "legitimate" state interests. Ante, at 877. This description of the undue burden standard in terms more commonly associated with the rational-basis test will come as a surprise even to those who have followed closely our wanderings in this forsaken wilderness. See, e. g., Akron I, supra, at 463 (O'Connor, J., dissenting) ("The 'undue burden' . . . represents the required threshold inquiry that must be conducted before this Court can require a State to justify its legislative actions under the exacting 'compelling state interest' standard"); see also Hodgson v. Minnesota, 497 U. S. 417, 458-460 (1990) (O'Connor, J., concurring in part and concurring in judgment in part); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 828 (1986) (O'Connor, J., dissenting). This confusing equation of the two standards is apparently designed to explain how one of the Justices who joined the plurality opinion in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), which adopted the rational-basis test, could join an opinion expressly adopting the undue burden test. See id., at 520 (rejecting the view that abortion is a "fundamental right," instead inquiring whether a law regulating the woman's "liberty interest" in abortion is "reasonably designed" to further "legitimate" state ends). The same motive also apparently underlies the joint opinion's erroneous citation of the plurality opinion in Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 506 (1990) (Akron II) (opinion of Kennedy, J.), as applying the undue burden test. See ante, at 876 (using this citation to support the proposition that "two of us"—i. e., two of the authors of the joint opinion—have previously applied this test). In fact, Akron II does not mention the undue burden standard until the conclusion of the opinion, when it states that the statute at issue "does not impose an undue, or otherwise unconstitutional, burden." 497 U. S., at 519 (emphasis added). I fail to see how anyone can think that saying a statute does not impose an unconstitutional burden under any standard, including
Page: Index Previous 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 NextLast modified: October 4, 2007