Strauder v. West Virginia.

October Term, 1879

ERROR to the Supreme Court of Appeals of the State of West Virginia.

The facts are stated in the opinion of the court.

 Mr. Charles Devens and Mr. George O. Davenport for the plaintiff in error. Mr. Robert White, Attorney-General of West Virginia, and Mr. James W. Green, contra.

@1. The Fourteenth Amendment of the Constitution of the United States considered, and held to be one of a series of constitutional provisions having a common purpose; namely, to secure to a recently emancipated race, which had been held in slavery through many generations, all the civil rights that the superior race enjoy, and to give to it the protection of the general government, in the enjoyment of such rights, whenever they should be denied by the States. Whether the amendment had other, and if so what, purposes, not decided.

@2. The amendment not only gave citizenship and the privileges of citizenship to persons of color, but denied to any State the power to withhold from them the equal protection of the laws, and invested Congress with power, by appropriate legislation, to enforce its provisions.

@3. The amendment, although prohibitory in terms, confers by necessary implication a positive immunity, or right, most valuable to persons of the colored race,-the right to exemption from unfriendly legislation against them distinctively as colored,-exemption from discriminations, imposed by public authority, which imply legal inferiority in civil society, lessen the security of their rights, and are steps towards reducing them to the condition of a subject race.

@4. The statute of West Virginia, which, in effect, singles out and denies to colored citizens the right and privilege of participating in the administration of the law, as jurors, because of their color, though qualified in all other respects, is, practically, a brand upon them, and a discrimination against them which is forbidden by the amendment. It denies to such citizens the equal protection of the laws, since the constitution of juries is a very essential part of the protection which the trial by jury is intended to secure. They very idea of a jury is that it is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of persons having the same legal status in society as that which he holds.

@5. Where, as here, the State statute secures to every white man the right of trial by jury selected from, and without discrimination against, his race, and at the same time permits or requires such discrimination against the colored man because of his race, the latter is not equally protected by law with the former.

@6. Sect. 641 of the Revised Statutes, which declares that ‘when any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the past of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, . . . such suit or prosecution may, upon the petition of such defendant, filed in said State court, at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending,’ considered and held not to be in conflict with the Constitution of the United States.

MR. JUSTICE STRONG delivered the opinion of the court.

The plaintiff in error, a colored man, was indicated for murder in the Circuit Court of Ohio County, in West Virginia, on the 20th of October, 1874, and upon trial was convicted and sentenced. The record was then removed to the Supreme Court of the State, and there the judgment of the Circuit Court was affirmed. The present case is a writ of error to that court, and it is now, in substance, averred that at the trial in the State court the defendant (now plaintiff in error) was denied rights to which he was entitled under the Constitution and laws of the United States.

In the Circuit Court of the State, before the trial of the indictment was commenced, the defendant presented his petition, verified by his oath, praying for a removal of the cause into the Circuit Court of the United States, assigning, as ground for the removal, that ‘by virtue of the laws of the State of West Virginia no colored man was eligible to be a member of the grand jury or to serve on a petit jury in the State; that white men are so eligible, and that by reason of his being a colored man and having been a slave, he had reason to believe, and did believe, he could not have the full and equal benefit of all laws and proceedings in the State of West Virginia for the security of his person as is enjoyed by white citizens, and that he had less chance of enforcing in the courts of the State his rights on the prosecution, as a citizen of the United States, and that the probabilities of a denial of them to him as such citizen on every trial which might take place on the indictment in the courts of the State were much more enhanced than if he was a white man.’ This petition was denied by the State court, and the cause was forced to trial.

Motions to quash the venire, ‘because the law under which*305 it was issued was unconstitutional, null, and void,’ and successive motions to challenge the array of the panel, for a new trial, and in arrest of judgment were then made, all of which were overruled and made by exceptions parts of the record.

The law of the State to which reference was made in the petition for removal and in the several motions was enacted on the 12th of March, 1873 (Acts of 1872-73, p. 102), and it is as follows: ‘All white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided.’ The persons excepted are State officials.

In this court, several errors have been assigned, and the controlling questions underlying them all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color; and, second, if he has such a right, and is denied its enjoyment by the State in which he is indicted, may he cause the case to be removed into the Circuit Court of the United States?

It is to be observed that the first of these questions is not whether a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of jurors by whom he is to be indicted or tried, all persons of his race or color may be excluded by law, solely because of their race or color, so that by no possibility can any colored man sit upon the jury.

The questions are important, for they demand a construction of the recent amendments of the Constitution. If the defendant has a right to have a jury selected for the trial of his case without discrimination against all persons of his race or color, because of their race or color, the right, if not created, is protected by those amendments, and the legislation of Congress under them. The Fourteenth Amendment ordains that ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or *306enforce any laws which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’

This is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases (16 Wall. 36), cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected. The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves. They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions *307 by appropriate legislation. To quote the language used by us in the Slaughter-House Cases, ‘No one can fail to be impressed with the one pervaiding purpose found in all the amendments, lying at the foundation of each, and without which none of them would have been suggested,-we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.’ So again: ‘The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied, and by it [the Fourteenth Amendment] such laws were forbidden. If, however, the States did not conform their laws to its requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation.’ And it was added, ‘We doubt very much whether any action of a State, not directed by way of discrimination against the negroes, as a class, will ever be held to come within the purview of this provision.’

If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State in which they reside). It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the *308 colored race,-the right to exemption from unfriendly legislation against them distinctively as colored,-exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.

That the West Virginia statute respecting juries-the statute that controlled the selection of the grand and petit jury in the case of the plaintiff in error-is such a discrimination ought not to be doubted. Nor would it be if the persons excluded by it were white men. If in those States where the colored people constitute a majority of the entire population a law should be enacted excluding all white men from jury service, thus denying to them the privilege of participating equally with the the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection of the laws. Nor if a law should be passed excluding all naturalized Celtic Irishmen, would there by any doubt of its inconsistency with the spirit of the amendment. The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.

The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone, in his Commentaries, says, ‘The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by *309 the Great Charter.’ It is also guarded by statutory enactments intended to make impossible what Mr. Bentham called ‘packing juries.’ It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy. Prejudice in a local community is held to be a reason for a change of venue. The framers of the constitutional amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was doubtless a motive that led to the amendment. By their manumission and citizenship the colored race became entitled to the equal protection of the laws of the States in which they resided; and the apprehension that through prejudice they might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws. Without the apprehended existence of prejudice that portion of the amendment would have been unnecessary, and it might have been left to the States to extend equality of protection.

In view of these considerations, it is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offence against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?*310

We do not say that within the limits from which it is not excluded by the amendment a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color. As we have said more than once, its design was to protect an emancipated race, and to strike down all possible legal discriminations against those who belong to it. To quote further from 16 Wall.,supra: ‘In giving construction to any of these articles [amendments], it is necessary to keep the main purpose steadily in view.’ ‘It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.’ We are not now called upon to affirm or deny that it had other purposes.

The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution.

Concluding, therefore, that the statute of West Virginia, discriminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offence against the State, it remains only to be considered whether the power of Congress to enforce the provisions of the Fourteenth Amendment by appropriate legislation is sufficient to justify the enactment of sect. 641 of the Revised Statutes.

A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress. Prigg v.The Commonwealth of Pennsylvania, 16 Pet. 539. So in *311United States v. Reese (92 (U. S. 214), it was said by the Chief Justice of this court: ‘Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right to be protected.’ But there is express authority to protect the rights and immunities referred to in the Fourteenth Amendment, and to enforce observance of them by appropriate congressional legislation. And one very efficient and appropriate mode of extending such protection and securing to a party the enjoyment of the right or immunity, is a law providing for the removal of his case from a State court, in which the right is denied by the State law, into a Federal court, where it will be upheld. This is an ordinary mode of protecting rights and immunities conferred by the Federal Constitution and laws. Sect. 641 is such a provision. It enacts that ‘when any civil suit or criminal prosecution is commenced in any State court for any cause whatsoever against any person who is denied, or cannot enforce, in the judicial tribunals of the State, or in the part of the State where such prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial, or final hearing of the case, stating the facts, and verified by oath, be removed before trial into the next Circuit Court of the United States to be held in the district where it is pending.’

This act plainly has reference to sects. 1977 and 1978 of the statutes which partially enumerate the rights and immunities intended to be guaranteed by the Constitution, the first of which declares that ‘all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, *312 pains, penalties, taxes, licenses, and exactions of every kind, and to no other.’ This act puts in the form of a statute what had been substantially ordained by the constitutional amendment. It was a step towards enforcing the constitutional provisions. Sect. 641 was an advanced step, fully warranted, we think, by the fifth section of the Fourteenth Amendment.

We have heretofore considered and affirmed the constitutional power of Congress to authorize the removal from State courts into the circuit courts of the United States, before trial, of criminal prosecutions for alleged offences against the laws of the State, when the defence presents a Federal question, or when a right under the Federal Constitution or laws is involved. Tennessee v. Davis, supra, p. 257. It is unnecessary now to repeat what we there said.

That the petition of the plaintiff in error, filed by him in the State court before the trial of his case, made a case for removal into the Federal Circuit Court, under sect. 641, is very plain, if, by the constitutional amendment and sect. 1977 of the Revised Statutes, he was entitled to immunity from discrimination against him in the selection of jurors, because of their color, as we have endeavored to show that he was. It set forth sufficient facts to exhibit a denial of that immunity, and a denial by the statute law of the State.

There was error, therefore, in proceeding to the trial of the indictment against him after his petition was filed, as also in overruling his challenge to the array of the jury, and in refusing to quash the panel.

The judgment of the Supreme Court of West Virginia will be reversed, and the case remitted with instructions to reverse the judgment of the Circuit Court of Ohio county; and it is

So ordered.

MR. JUSTICE FIELD.

I dissent from the judgment of the court in this case, on the grounds stated in my opinion in Ex parte Virginia (infra, p. 349), and MR. JUSTICE CLIFFORD concurs with me.

U.S.,1879 Strauder v. West Virginia 100 U.S. 303, 10 Otto 303, 1879 WL 16562 (U.S.W.Va.), 25 L.Ed. 664  

Giles v. Harris.

Submitted February, 24, 1903.

Decided April 27, 1903.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA.

Mr. Wilford H. Smith for appellant.

Mr. William A. Gunter for appellees.

*482 MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity brought by a colored man, on behalf of himself "and on behalf of more than five thousand negroes, citizens of the county of Montgomery, Alabama, similarly situated and circumstanced as himself," against the board of registrars of that county. The prayer of the bill is in substance that the defendants may be required to enroll upon the voting lists the name of the plaintiff and of all other qualified members of his race who applied for registration before August 1, 1902, and were refused, and that certain sections of the constitution of Alabama,.viz., sections 180, 181, 183, 184, 185, 186, 187 and 188 of article 8, may be declared contrary to the Fourteenth and Fifteenth Amendments of the Constitution of the United States, and void.

The allegations of the bill may be summed up as follows. The plaintiff is subject to none of the disqualifications set forth in the constitution of Alabama and is entitled to vote — entitled, as the bill plainly means, under the constitution as it is. He applied in March, 1902, for registration as a voter, and was refused arbitrarily on the ground of his color, together with large numbers of other duly qualified negroes, while all white men were registered. The same thing was done all over the State. Under section 187 of article 8 of the Alabama constitution persons registered before January 1, 1903, remain electors for life unless they become disqualified by certain crimes, etc., while after that date severer tests come into play which would exclude, perhaps, a large part of the black race. Therefore, by the refusal, the plaintiff and the other negroes excluded were deprived not only of their vote at an election which has taken place since the bill was filed, but of the permanent advantage incident to registration before 1903. The white men generally are registered for good under the easy test and the black men are likely to be kept out in the future as in the past. This refusal to register the blacks was part of a general scheme to disfranchise them, to which the defendants and the State itself, according to the bill, were parties. The defendants accepted their office for the purpose of carrying out the scheme. The *483 part taken by the State, that is, by the white population which framed the constitution, consisted in shaping that instrument so as to give opportunity and effect to the wholesale fraud which has been practised.

The bill sets forth the material sections of the state constitution, the general plan of which, leaving out details, is as follows: By § 178 of article 8, to entitle a person to vote he must have resided in the State at least two years, in the county one year and in the precinct or ward three months, immediately preceding the election, have paid his poll taxes and have been duly registered as an elector. By § 182, idiots, insane persons and those convicted of certain crimes are disqualified. Subject to the foregoing, by § 180, before 1903 the following male citizens of the State, who are citizens of the United States, were entitled to register, viz.: First. All who had served honorably in the enumerated wars of the United States, including those on either side in the "war between the States." Second. All lawful descendants of persons who served honorably in the enumerated wars or in the war of the Revolution. Third. "All persons who are of good character and who understand the duties and obligations of citizenship under a republican form of government."As we have said, according to the allegations of the bill this part of the constitution, as practically administered and as intended to be administered, let in all whites and kept out a large part, if not all, of the blacks, and those who were let in retained their right to vote after 1903, when tests which might be too severe for many of the whites as well as the blacks went into effect. By § 181, after January 1, 1903, only the following persons are entitled to register: First. Those who can read and write any article of the Constitution of the United States in the English language, and who either are physically unable to work or have been regularly engaged in some lawful business for the greater part of the last twelve months, and those who are unable to read and write solely because physically disabled. Second. Owners or husbands of owners of forty acres of land in the State, upon which they reside, and owners or husbands of owners of real or personal estate in the State assessed for taxation at three *484 hundred dollars or more, if the taxes have been paid unless under contest. By § 183, only persons qualified as electors can take part in any method of party action. By § 184, persons not registered are disqualified from voting. By § 185, an elector whose vote is challenged shall be required to swear that the matter of the challenge is untrue before his vote shall be received. By § 186, the legislature is to provide for registration after January 1, 1903, the qualifications and oath of the registrars are prescribed, the duties of registrars before that date are laid down, and an appeal is given to the county court and Supreme Court if registration is denied. There are further executive details in § 187, together with the above mentioned continuance of the effect of registration before January 1, 1903. By § 188, after the last mentioned date applicants for registration may be examined under oath as to where they have lived for the last five years, the names by which they have been known, and the names of their employers. This, in brief, is the system which the plaintiff asks to have declared void.

Perhaps it should be added to the foregoing statement that the bill was filed in September, 1902, and alleged the plaintiff's desire to vote at an election coming off in November. This election has gone by, so that it is impossible to give specific relief with regard to that. But we are not prepared to dismiss the bill or the appeal on that ground, because to be enabled to cast a vote in that election is not, as in Mills v. Green, 159 U.S. 651, 657, the whole object of the bill. It is not even the principal object of the relief sought by the plaintiff. The principal object of that is to obtain the permanent advantages of registration as of a date before 1903.

The certificate of the circuit judge raises the single question of the jurisdiction of the court. The plaintiff contends that this jurisdiction is given expressly by Rev. Stat. § 629, cl. 16, coupled with Rev. Stat. § 1979, which provides that every person who, under color of a state "statute, ordinance, regulation, custom, or usage," "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, *485 or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

We assume, as was assumed in Holt v. Indiana Manufacturing Co., 176 U.S. 68, 72, that § 1979 has not been repealed, and that jurisdiction to enforce its provisions has not been taken away by any later act. But it is suggested that the Circuit Court was right in its ruling that it had no jurisdiction as a court of the United States, because the bill did not aver threatened damage to an amount exceeding two thousand dollars. It is true that by the act of August 13, 1888, c. 866, § 1, 25 Stat. 433, 434, the Circuit Courts are given cognizance of suits of a civil nature, at common law or in equity, arising under the Constitution or laws of the United States, in which the matter in dispute exceeds the sum or value of two thousand dollars. We have recognized, too, that the deprivation of a man's political and social rights properly may be alleged to involve damage to that amount, capable of estimation in money. Wiley v. Sinkler, 179 U.S. 58; Swafford v. Templeton, 185 U.S. 487. But, assuming that the allegation should have been made in a case like this, the objection to its omission was not raised in the Circuit Court, and as it could have been remedied by amendment, we think it unavailing. The certificate was made alio intuitu. There is no pecuniary limit on appeals to this court under section 5 of the act of 1891, c. 517, 26 Stat. 826, 828, The Paquete Habana, 175 U.S. 677, 683, and we do not feel called upon to send the case back to the Circuit Court in order that it might permit the amendment. In Mills v. Green, 159 U.S. 651; S.C., 69 Fed. Rep. 852, no notice was taken of the absence of an allegation of value in a case like this.

We assume further, for the purposes of decision, that § 1979 extends to a deprivation of rights under color of a state constitution, although it might be argued with some force that the enumeration of "statute, ordinance, regulation, custom, or usage," purposely is confined to inferior sources of law. On these assumptions we are not prepared to say that an action at law could not be maintained on the facts alleged in the bill. Therefore we are not prepared to say that the decree should be affirmed *486 on the ground that the subject matter is wholly beyond the jurisdiction of the Circuit Court. Smith v. McKay, 161 U.S. 355, 358, 359.

Although the certificate relates only to the jurisdiction of that court as a court of the United States, yet, as the ground of the bill is that the constitution of Alabama is in contravention of the Constitution of the United States, the appeal opens the whole case under the act of 1891, c. 517, § 5, 26 Stat. 827. The plaintiff had the right to appeal directly to this court. The certificate was unnecessary to found the jurisdiction of this court, and could not narrow it. As the case properly is here we proceed to consider the substance of the complaint.

It seems to us impossible to grant the equitable relief which is asked. It will be observed in the first place that the language of § 1979 does not extend the sphere of equitable jurisdiction in respect of what shall be held an appropriate subject matter for that kind of relief. The words are "shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." They allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding. The traditional limits of proceedings in equity have not embraced a remedy for political wrongs. Green v. Mills, 69 Fed. Rep. 852. But we cannot forget that we are dealing with a new and extraordinary situation, and we are unwilling to stop short of the final considerations which seems to us to dispose of the case.

The difficulties which we cannot overcome are two, and the first is this: The plaintiff alleges that the whole registration scheme of the Alabama constitution is a fraud upon the Constitution of the United States, and asks us to declare it void. But of course he could not maintain a bill for a mere declaration in the air. He does not try to do so, but asks to be registered as a party qualified under the void instrument. If then we accept the conclusion which it is the chief purpose of the bill to maintain, how can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists? If a white man came here on the same general *487 allegations, admitting his sympathy with the plan, but alleging some special prejudice that had kept him off the list, we hardly should think it necessary to meet him with a reasoned answer. But the relief cannot be varied because we think that in the future the particular plaintiff is likely to try to overthrow the scheme. If we accept the plaintiff's allegations for the purposes of his case, he cannot complain. We must accept or reject them. It is impossible simply to shut our eyes, put the plaintiff on the lists, be they honest or fraudulent, and leave the determination of the fundamental question for the future. If we have an opinion that the bill is right on its face, or if we are undecided, we are not at liberty to assume it to be wrong for the purposes of decision. It seems to us that unless we are prepared to say that it is wrong, that all its principal allegations are immaterial and that the registration plan of the Alabama constitution is valid, we cannot order the plaintiff's name to be registered. It is not an answer to say that if all the blacks who are qualified according to the letter of the instrument were registered, the fraud would be cured. In the first place, there is no probability that any way now is open by which more than a few could be registered, but if all could be the difficulty would not be overcome. If the sections of the constitution concerning registration were illegal in their inception, it would be a new doctrine in constitutional law that the original invalidity could be cured by an administration which defeated their intent. We express no opinion as to the alleged fact of their unconstitutionality beyond saying that we are not willing to assume that they are valid, in the face of the allegations and main object of the bill, for the purpose of granting the relief which it was necessary to pray in order that that object should be secured.

The other difficulty is of a different sort, and strikingly reinforces the argument that equity cannot undertake now, any more than it has in the past, to enforce political rights, and also the suggestion that state constitutions were not left unmentioned in § 1979 by accident. In determining whether a court of equity can take jurisdiction, one of the first questions is what it can do to enforce any order that it may make. This is alleged *488 to be the conspiracy of a State, although the State is not and could not be made a party to the bill. Hans v. Louisiana, 134 U.S. 1. The Circuit Court has no constitutional power to control its action by any direct means. And if we leave the State out of consideration, the court has as little practical power to deal with the people of the State in a body. The bill imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff's name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that State by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States.

Decree affirmed.

MR. JUSTICE HARLAN dissenting.

By the final judgment in the Circuit Court the bill in this case was dismissed for want of jurisdiction to entertain it and for want of equity; and from that judgment the plaintiffs prayed and were allowed an appeal.

Subsequently an order was made by the Circuit Court certifying that the only question considered and decided was whether upon the bill and demurrer a case was presented of *494 which it had jurisdiction under the Constitution and laws of the United States.

Although the case involves questions of considerable importance, it was submitted here without oral argument.

Could the Circuit Court take cognizance of this cause consistently with the act of Congress regulating its jurisdiction? This is naturally the fundamental, if not the only, question in the case. An answer to the question requires a reference to several acts of Congress, including the Judiciary Act of August 13, 1888, correcting that of March 3, 1887. 25 Stat. 433.

Section 629 of the Revised Statutes enumerates in subdivisions the cases of which the Circuit Courts of the United States may take original cognizance.

In subdivision one of that section the Circuit Courts are given original cognizance "of all suits of a civil nature at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the State where it is brought and a citizen of another State;" and in subdivision two, "of all suits in equity, where the matter, exclusive of costs, exceeds the sum or value of five hundred dollars, and the United States are petitioners." Rev. Stat. § 629, subdiv. 1 and 2.

By the sixteenth subdivision of that section it is declared that the Circuit Courts shall have original cognizance " of all suits authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or of all persons within the jurisdiction of the United States." The matter in dispute in such suits was not expressly required by the Revised Statutes to have any money value.

By section 1979 of the Revised Statutes, Title 24, "Civil Rights," it is provided that "every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes to be subjected, any citizen *495 of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." It has been said that this section as well as subdivision 16 of section 629 were based upon the first section of the act of April 20, 1871, 17 Stat. 13, c. 22, entitled "An act to enforce the provisions of the Fourteenth Amendment to the Constitution of the United States, and for other purposes." Holt v. Indiana Manuf. Co., 176 U.S. 68, 70.

Next came the act of March 3, 1875, which provided that "The Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens, or subjects; and shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the District Courts of the crimes and offences cognizable therein." 18 Stat. 470, c. 137. That act expressly repealed previous statutes in conflict with its provisions.

Then came the act of 1888, correcting that of 1887, and which provides "That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, *496 or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid." By that act the conflicting provisions of previous acts were repealed, except in certain particulars, among which were the provisions relating to "any jurisdiction or right mentioned . . . in Title twenty-four of the Revised Statutes," Civil Rights, under which Title § 1979 is found.

It is clear that under the act of 1888 a Circuit Court could not take original cognizance of a suit simply because it was one arising under the Constitution or laws of the United States. The value of the matter in dispute in such a case must exceed $2000, exclusive of interest and costs.

The bill makes no allegation whatever as to the value of the matter in dispute, although this court, speaking by the Chief Justice, in Holt v. Indiana Manufacturing Company, above cited, after referring to the first section of the Judiciary Act of 1888, said: "This" [the question of the value in dispute in cases arising under the Constitution or laws of the United States] "was carefully considered in United States v. Sayward, 160 U.S. 493, and it was held that the sum or value named was jurisdictional, and that the Circuit Court could not, under the statute, take original cognizance of a case arising under the Constitution or laws of the United States unless the sum or value of the matter in dispute, exclusive of costs and interest, exceeded two thousand dollars. That decision was reaffirmed in Fishback v. Western Union Telegraph Company, 161 U.S. 96, 99." It was added — contrary to the intimation given in the opinion in the present case — that "the conclusion reached is not affected by the fact that the operation of the act of March 3, 1891, was to do away with any pecuniary limitation on appeals directly from the Circuit Courts to this court. The Paquete *497 Habana, 175 U.S. 677." Of course, it was not meant by that language that the jurisdiction of the Circuit Courts, so far as the value of the matter in dispute is concerned, was changed as to the cases embraced by the fifth section of the act of 1891. The act of 1891 left the original jurisdiction of the Circuit Courts as established by the act of 1888.

1. It cannot be disputed that the present suit is one arising under the Constitution and laws of the United States, and it is clear that the value of the matter in dispute is made by the statute an essential element in the jurisdiction of the Circuit Court in such a case. But it has been suggested that this suit is also embraced by subdivision 16 of § 629 and § 1979 of the Revised Statutes — which provisions this court assumed, in Holt v. Manufacturing Co., and now assumes, were not repealed by any subsequent statute, and, therefore, that the value of the matter in dispute is of no consequence. But this suggestion overlooks the declaration of the court in that case to the effect that although the above provisions must be assumed to be still (1899) in force, they refer "to civil rights only." 176 U.S. 72. In this view, subdivision 16 of § 629 and § 1979 of the Revised Statutes have no bearing upon the present case, if the rights for the protection of which the present suit was brought are political rights, and not civil rights within the meaning of the statutes relating to "Civil Rights." Consequently the saving clause in the act of 1888 in respect of any jurisdiction or right mentioned in Title 24 of the Revised Statutes, Civil Rights, becomes immaterial in the present case. Whether this be so or not, the court refrains from declaring that the plaintiff could proceed under subdivision 16 of section 629 or section 1979 of the Revised Statutes, without regard to the value of the matter in dispute. If this court thinks that this suit could be maintained under subdivision 16 of § 629 or under § 1979, or under both, without regard to the value of the matter in dispute, I submit that it should have been so adjudged.

2. Referring to the suggestion that the act of 1888 gives the Circuit Court jurisdiction in all suits at law or equity, in which the matter in dispute is the sum or value of $2000 and arising under the Constitution or laws of the United States, and conceding *498 that this court in Wiley v. Sinkler, 179 U.S. 57, and Swafford v.Templeton, 185 U.S. 487, recognized that the deprivation of a man's political rights (those cases had reference to the elective franchise) may properly be alleged to have the required value in money, the court says: "Assuming that the allegation [of value] should have been made in a case like this, the objection to its omission was not raised in the Circuit Court, and as it could have been remedied by amendment, we think it unavailing. The certificate was made alio intuitu. There is no pecuniary limit on appeals in this court under section 5 of the act of 1891, c. 517, 26 Stat. 826, 828; The Paquete Habana, 175 U.S. 677, 683, and we do not feel called upon to send the case back to the Circuit Court that it might permit the amendment."

It seems to me that this question as to the value of the matter in dispute was sufficiently raised in the Circuit Court; for the demurrer to the bill was, in part, on the ground that the facts stated did not make a case "within the jurisdiction of the court." But, passing that view, I come to a more serious matter. In cases of which a Circuit Court may take original cognizance, the value of the matter in dispute — which is mentioned in the statute in advance of any reference to the nature of the subject of the action — is as essential to jurisdiction as is the nature of the subject of such dispute. And yet the court says that an objection that the record from the Circuit Court does not show an allegation as to value is unavailing here, even if such allegation ought to have been made. That is a new, and I take leave to say a startling, doctrine. Must not this court upon its own motion decline to pass upon, indeed, has this court, strictly speaking, jurisdiction to consider and determine, the merits of a case coming from the Circuit Court, unless it affirmatively appears from the record that the case is one of which that court could take cognizance? Is not a suit presumably without the jurisdiction of a Circuit Court, unless the record shows it to be one of which that court may take cognizance? Is it of any consequence that the parties did not raise the question of jurisdiction in the Circuit Court? If the record shows nothing more than that the case *499 arises under the Constitution and laws of the United States, and if it does not affirmatively appear, in some appropriate way, that the value of the matter in dispute is up to the required amount, has this court jurisdiction to consider and determine the merits of the case?

Let us look at some of the adjudged cases upon the general subject of the jurisdiction of the Federal courts, and see what the duty of this court is when its own jurisdiction does not affirmatively appear from the record, or when it does not appear that the Circuit Court had jurisdiction.

In Sizer v. Many, 16 How. 97, 103, which was an action for the infringement of letters patent: "The sum taxed being less than $2000 no writ of error will lie under the act of 1789. This act gives no jurisdiction to this court over the judgment of a Circuit Court, where the judgment is for less than that sum. . .. The writ of error must therefore be dismissed for want of jurisdiction." In Brown v. Shannon, 20 How. 55, 58, which was an action to enforce the specific execution of a contract in relation to the use of a patent right: "The sum mentioned in the bill . . . being less than $2000, whatever errors may be apparent in the proceedings and decree of the court below, we have yet no power under the act of Congress to revise and correct them, and the appeal must be dismissed." In Richmond v. City of Milwaukee, 21 How. 80, 82, which was an action to prohibit the conveyance of certain lots: "There is nothing in the allegations of the parties or in the evidence to show that the value of the lots in question exceeded $2000, nor anything from which it can be inferred. The appeal must therefore be dismissed for want of jurisdiction in this court." In Pratt v. Fitzhugh, 1 Black, 271, 273, which was a cause in admiralty: "Without the fact of value being shown on the record, or by evidence aliunde, the court has no jurisdiction." In Walker v. United States, 4 Wall. 163, 165,which was an action on a judgment for money: "This court has no appellate jurisdiction, except such as is defined by Congress. The act of Congress limits this jurisdiction to cases where the matter in dispute exceeds $2000. We can no more take jurisdiction where the matter does not exceed than we can where it is less *500 than that sum. The amount in controversy in the case before us, ascertained in conformity with the settled principles of the court, does not exceed two thousand dollars. We have, therefore, no jurisdiction of the writ of error, and it must be dismissed." In The Grace Girdler, 6 Wall. 441, which was an appeal in admiralty: "While it is true that the greater part of the loss fell upon Lockwood as owner of the Ariel, and her belongings, there is nothing in the record which shows that the damage sustained exceeded $2000. And this is essential to jurisdiction." In Ayersv. Watson, 113 U.S. 595, 598, which was an action of trespass to try title to land: "Diverse state citizenship of the parties, or some other jurisdictional fact prescribed by the second section, is absolutely essential, and cannot be waived, and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed."

These cases relate to the jurisdiction of this court under statutes prescribing a certain amount as essential, upon writ of error or appeal, for the review of judgments rendered in the Circuit Court.

Looking now at cases in which the want of jurisdiction in the Circuit Court has been held to preclude this court from going into the merits of the case adjudged, we find in King Bridge Co. v. Otoe County, 120 U.S. 226, which was an action upon county warrants, this language: "It does not appear that the Circuit Court had jurisdiction of the action. Unless the contrary appears affirmatively from the record, the presumption, upon writ of error or appeal, is that the court below was without jurisdiction." In Metcalf v. Watertown, 128 U.S. 587, which was an action upon a judgment, and in which case the question was whether an action upon a certain judgment was barred by limitation, this court said: "We are not, however, at liberty to express any opinion upon the question of limitation, if the court, whose judgment has been brought here for review, does not appear, from the record, to have had jurisdiction of the case. And whether that court had or had not jurisdiction, is a question which we must examine and determine, even if the parties forbear to make it, or consent that the case be *501 considered upon its merits." In Chapmanv. Barney, 129 U.S. 677, 681, which was an action for trover: "We are confronted with the question of jurisdiction, which, although not raised by either party in the court below or in this court, is presented by the record, and under repeated decisions of this court must be considered." In Parker v. Ormsby, 141 U.S. 83: "Did the court below have jurisdiction of this case? If jurisdiction did not affirmatively appear, upon the record, it was error to have rendered a decree, whether the question of jurisdiction was raised or not in the court below. In the exercise of its power, this court, of its own motion, must deny the jurisdiction of the courts of the United States, in all cases coming before it, upon writ of error or appeal, where such jurisdiction does not affirmatively appear in the record on which it is called to act." In Mattingly v. Northwestern Virginia Railroad, 158 U.S. 53, 57, which was an action to set aside certain conveyances and to foreclose a mortgage: "Although it does not appear that the question of jurisdiction was raised in the court below by any plea or motion, yet as the record failed to affirmatively show jurisdiction, this court must take notice of the defect."

According to the adjudged cases, the first inquiry which this court should make as to any case before it from an inferior Federal court is as to its own jurisdiction. If jurisdiction does not appear from the record then the writ of error or appeal should be dismissed. If it is found to have jurisdiction for any purpose, then its next duty is to inquire as to the jurisdiction of the court below. When the latter court does not appear upon the record to have jurisdiction, then the duty of this court is to reverse the judgment and remand the case to be dismissed for want of jurisdiction. I say "appear upon the record to have jurisdiction," because, as we have seen, the presumption is that a cause is without the jurisdiction of a Federal court, unless the contrary affirmatively appears. Turner v. Bank of North America, 4 Dall. 8; Brown v. Keene, 8 Pet. 115; Ex parte Smith, 94 U.S. 455; Robertson v. Cease, 97 U.S. 646. In Brown v. Keene, Chief Justice Marshall said: "The decisions of this court require that the averment of jurisdiction shall be positive; that the declaration shall state expressly the fact on which jurisdiction *502 depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments."

To these cases I will add that of M.C. & L.M. Railway v. Swan, 111 U.S. 379, 382,in which this court said: "It is true that the plaintiffs below, against whose objection the error was committed, do not complain of being prejudiced by it; and it seems to be an anomaly and a hardship that the party at whose instance it was committed should be permitted to derive an advantage from it; but the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."

In the above case of Holt v. Manufacturing Co., 176 U.S. 68, which involved a question of the jurisdiction of the Circuit Court, this court said: "In this, as in all cases, if it appears that the Circuit Court had no jurisdiction, it is the duty of this court to so declare, and enter judgment accordingly."

These principles have been expressly affirmed by this court in many other cases. And yet, according to the opinion in this case, if objection is not made in the Circuit Court to its jurisdiction, it will be unavailing to raise that question in this court, and we may proceed to determine the merits of the case. Such a doctrine, I repeat, is a new departure. The court, in effect says, that although it may know that the record fails to show a case within the original cognizance of the Circuit Court, it may close its eyes to that fact, and review the case on its merits. In view of the adjudged cases, I cannot agree that the failure of parties to raise a question of jurisdiction will relieve this court of its duty to raise it upon its own motion. The contrary *503view cannot be justified. This court may not assume jurisdiction to do that which it has no authority to do.

It will be appropriate to observe that the Circuit Court in effect propounds the question whether it had jurisdiction of this case upon the record before it. That question necessarily involves the inquiry whether subdivision 16 of § 629 and § 1979 of the Revised Statutes were repealed by later acts. But that point is left undecided, the court only assuming that those statutory provisions are still in force, but it does not say whether the suit could be maintained under those sections or under either of them without allegation or proof as to the value of the matter in dispute. Nor does the court distinctly adjudge whether the case is embraced by the act of 1887-8; but simply assuming that the allegation of value should have been made in the bill, it proceeds to consider the case upon its merits. The question of the jurisdiction of the Circuit Court under the acts of Congress, the one certified, is thus left in the air, and the case is examined and disposed of upon its merits just as if jurisdiction of the Circuit Court appeared upon the record. There is no claim that the essential fact of value appears anywhere in the record, either in the bill or otherwise. Consequently, as already said, this court is without power to consider the merits.

The court says that the plaintiff had the right to appeal directly to this court under section 5 of the act of 1891, and that the certificate was unnecessary to found the jurisdiction of this court and could not narrow it. But it does not follow that this court can review the merits of the case, if the Circuit Court does not appear to have had jurisdiction to determine the rights of the parties.

My views may be summed up as follows: 1. This case is embraced by that clause of the act of 1887-8, which provides that the Circuit Court shall have original cognizance "of all suits of a civil nature, . . . where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States." 2. That the sum or value of the matter in dispute in such cases is jurisdictional under the statute. 3. That as it did not appear from the record, in any way, that the matter *504 in dispute exceeded in value the jurisdictional amount, the Circuit Court could not take cognizance of the case or dispose of it upon its merits. 4. That least of all does this court have jurisdiction to determine the merits of this case. 5. That when a case comes here upon a certificate as to the jurisdiction of a Circuit Court, this court may not forbear to decide that question, and determine the merits of the case upon a record which does not show jurisdiction in the Circuit Court.

As these are my views as to the jurisdiction of this court, upon this record, I will not formulate and discuss my views upon the merits of this case. But to avoid misapprehension, I may add that my conviction is that upon the facts alleged in the bill (if the record showed a sufficient value of the matter in dispute) the plaintiff is entitled to relief in respect of his right to be registered as a voter. I agree with MR. JUSTICE BREWER that it is competent for the courts to give relief in such cases as this.

MR. JUSTICE BREWER dissenting.

I am unable to concur in either the opinion or judgment in this case. The single question is whether the Circuit Court of the United States had jurisdiction. Accepting the statement of facts in the opinion of the majority as sufficiently full, it appears that the plaintiff was entitled to a place on the permanent registry and was denied it by the defendants, the board of registrars in the county in which he lived. No one was allowed to vote who was not registered. He desired to vote at the coming election for representative in Congress. He was deprived of that right by the action of the defendants. Has the Circuit Court jurisdiction to redress such wrong? It is conceded that because of the permanence of the registry the appeal cannot be dismissed under Mills v. Green, 159 U.S. 651, for if registered on the permanent registry the plaintiff can vote at all future elections.

Whether the plaintiff's remedy was at law or in equity, cannot *489 be considered on this appeal. It was so decided in Smith v. McKay, 161 U.S. 355, the authority of which is not in terms denied in the opinion of the majority, although by the decision it is practically disregarded. The certificate of the trial judge stated that "the only question considered and decided by the court in dismissing the bill of complaint was, whether upon the bill and demurrer thereto a case is presented of which this court has jurisdiction under the Constitution or laws of the United States."

The act of Congress authorizing appeals directly from the Circuit Courts to this court, 26 Stat. 827, provides that:

"In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision."

In Smith v. McKay, we said (p. 358):

"When the requisite citizenship of the parties appears, and the subject matter is such that the Circuit Court is competent to deal with it, the jurisdiction of that court attaches, and whether the court should sustain the complainant's prayer for equitable relief, or should dismiss the bill with leave to bring an action at law, either would be a valid exercise of jurisdiction. If any error were committed in the exercise of such jurisdiction, it could only be remedied by an appeal to the Circuit Court of Appeals."

See also Tucker v. McKay, 164 U.S. 701; Murphy v. Colorado Paving Company,166 U.S. 719; Shepard v. Adams, 168 U.S. 618, 622; Building & Loan Association v. Price, 169 U.S. 45, in which we said:

"The complainant appealed to this court, which appeal was allowed and granted solely upon the question of the jurisdiction of the Circuit Court, and that question alone has been certified. Whether the bill shows facts sufficient to invoke the consideration of a court of equity is not such a question of jurisdiction as is referred to in the Judiciary Act of March 3, 1891, c. 517, and we have therefore no concern with that question." Blythe Company v. Blythe, 172 U.S. 644; Blythe v. Hinckley,173 U.S. 501, 506, from which I quote: "Appeals or writs of error may be taken directly from the Circuit Courts to this court in *490 cases in which the jurisdiction of those courts is in issue, that is, their jurisdiction as Federal courts, the question alone of jurisdiction being certified to this court. The Circuit Court held that the remedy was at law and not in equity. That conclusion was not a decision that the Circuit Court had no jurisdiction as a court of the United States."

A still more significant case is Huntington v. Laidley, 176 U.S. 668. In that case proceedings had been had in the courts of the State resulting in a final determination of the controversy. Subsequently this action was commenced in the Federal court, and the final decision of the state courts was pleaded as res judicata. The Circuit Court dismissed the suit for want of jurisdiction, and certified the question to this court. I thought it was sacrificing substance to form to reverse the judgment of dismissal when it was apparent that the controversy had been settled by the decisions in the state court, and, therefore, could not rightfully be relitigated in the Federal court. But this court held that the only question to be considered was that of jurisdiction, saying (p. 679):

"Under the circumstances of this case, the question whether the proceedings in any or all of the suits, at law or in equity, in the state court, afforded a defence — either by way of res adjudicata, or because of any control acquired by the state court over the subject matter — to this bill in the Circuit Court of the United States, was not a question affecting the jurisdiction of that court, but was a question affecting the merits of the cause, and as such to be tried and determined by that court in the exercise of its jurisdiction. The Circuit Court of the United States cannot, by treating a question of merits as a question of jurisdiction, enable this court, upon a direct appeal on the question of jurisdiction only, to decide the question of merits, except in so far as it bears upon the question whether the court below had or had not jurisdiction of the case. In any aspect of the case, the decree of the Circuit Court of the United States, dismissing the suit for want of jurisdiction, must be reversed, and the cause remanded to that court for further proceedings therein."

Although the statute and these decisions thus expressly limit the range of inquiry on a certificate of jurisdiction to the question *491 of jurisdiction, is is held that because there is a constitutional question shown in the pleadings, the certificate may be ignored and the entire case presented to this court for consideration. In other words, although the plaintiff, by his method of appeal, following the provisions of the statute, limited the inquiry to the matter of jurisdiction, this court will ignore such limit and treat the case as coming here on a general appeal, which he did not take. This conclusion seems to me to practically destroy the statute and overrule the prior decisions, for the jurisdiction of Federal courts primarily rests on the Constitution of the United States and the extent of their jurisdiction is determined by its provisions. Hence every case coming up on a certificate of jurisdiction may be held to present a constitutional question and be open for full inquiry in respect to all matters involved.

Neither can I assent to the proposition that the case presented by the plaintiff's bill is not strictly a legal one and entitling a party to a judicial hearing and decision. He alleges that he is a citizen of Alabama, entitled to vote; that he desired to vote at an election for representative in Congress; that without registration he could not vote, and that registration was wrongfully denied him by the defendants. That many others were similarly treated does not destroy his rights or deprive him of relief in the courts. That such relief will be given has been again and again affirmed in both National and state courts.

That the United States Circuit Court has jurisdiction of an action like this seems to me to result inevitably from prior decisions of this court. Without stopping to notice in detail the cases of Ex parte Siebold, 100 U.S. 371; Ex parte Yarbrough, 110 U.S. 651, and In re Coy, 127 U.S. 731, in which the general jurisdiction of Federal courts over matters involved in the election of national officers is affirmed, I refer to two recent cases which bear directly upon the present question. Wiley v. Sinkler,179 U.S. 58, was an action brought in the Circuit Court of the United States by the plaintiff to recover damages of an election board for wilfully rejecting his vote for a member of the House of Representatives. We held that the court had jurisdiction, and said (p. 64):*492 "This action is brought against election officers to recover damages for their rejection of the plaintiff's vote for a member of the House of Representatives of the United States. The complaint, by alleging that the plaintiff was at the time, under the constitution and laws of the State of South Carolina and the Constitution and laws of the United States, a duly qualified elector of the State, shows that the action is brought under the Constitution and laws of the United States. The damages are laid at the sum of $2500. What amount of damages the plaintiff shall recover in such an action is peculiarly appropriate for the determination of a jury, and no opinion of the court upon that subject can justify it in holding that the amount in controversy was insufficient to support the jurisdiction of the Circuit Court. Barry v. Edmunds, 116 U.S. 550; Scott v. Donald, 165 U.S. 58, 89; Vance v. W.A. Vandercook Co., 170 U. 468, 472; North American Co. v. Morrison, 178 U.S. 262, 267. The Circuit Court therefore clearly had jurisdiction of this action, and we are brought to the consideration of the other objections presented by the demurrer to the complaint."

Again, in Swafford v. Templeton, 185 U.S. 487, which, like the former case, was one brought in the Circuit Court of the United States to recover damages for the alleged wrongful refusal by the defendants as election officers to permit the plaintiff to vote at a national election for a member of the House of Representatives, it was held that the court had jurisdiction. Here, too, we said, after referring to Wiley v. Sinkler (p. 492):

"It is manifest from the context of the opinion in the case just referred to that the conclusion that the cause was one arising under the Constitution of the United States was predicated on the conception that the action sought the vindication or protection of the right to vote for a member of Congress, a right, as declared in Ex parte Yarbrough, 110 U.S. 655, 664, `fundamentally based upon the Constitution of the United States, which created the office of member of Congress, and declared that it should be elective, and pointed out the means of ascertaining who should be electors.' That is to say, the ruling was that the case was equally one arising under the Constitution or laws of the United States, whether the illegal act complained *493 of arose from a charged violation of some specific provision of the Constitution or laws of the United States, or from the violation of a state law which affected the exercise of the right to vote for a member of Congress, since the Constitution of the United States had adopted, as the qualifications of electors for members of Congress, those prescribed by the State for electors of the most numerous branch of the legislature of the State. It results from what has just been said that the court erred in dismissing the action for want of jurisdiction, since the right which it was claimed had been unlawfully invaded was one in the very nature of things arising under the Constitution and laws of the United States, and that this inhered in the very substance of the claim. It is obvious from an inspection of the certificate that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States."

It seems to me nothing need be added to these decisions, and unless they are to be considered as overruled they are decisive of this case.

MR. JUSTICE BROWN also dissents.

Abigail Noel Fisher, Petitioner v. University of Texas at Austin et al.

Argued October 10, 2012.

Decided June 24, 2013.

*2414 Bert W. Rein, Washington, DC, Petitioner.

Gregory G. Garre, Washington, DC, for Respondents.

Donald B. Verilli, Jr., for the United States as amicus curiae, by special leave of the Court, supporting the Respondents.

Bert W. Rein, Counsel Of Record, William S. Consovoy, Thomas R. McCarthy, Claire J. Evans, Wiley Rein LLP, Washington, DC, for Petitioner.

Patricia C. Ohlendorf, Vice President for Legal Affairs, The University of Texas at Austin Flawn Academic Center, Austin, TX, Douglas Laycock, University of Virginia *2415 School of Law, Charlottesville, VA, Gregory G. Garre, Counsel of Record, Maureen E. Mahoney, J. Scott Ballenger, Lori Alvino McGill, Katya S. Georgieva, Latham & Watkins LLP, Washington, DC, James C. Ho, Gibson, Dunn & Crutcher LLP, Dallas, TX, for Respondents.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA, J., and THOMAS, J., filed concurring opinions. GINSBURG, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.

Justice KENNEDY delivered the opinion of the Court.

The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process. Race is not itself assigned a numerical value for each applicant, but the University has committed itself to increasing racial minority enrollment on campus. It refers to this goal as a "critical mass." Petitioner, who is Caucasian, sued the University after her application was rejected. She contends that the University's use of race in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment.

The parties asked the Court to review whether the judgment below was consistent with "this Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003)." Pet. for Cert. i. The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 305, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court's grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings.

I

A

Located in Austin, Texas, on the most renowned campus of the Texas state university system, the University is one of the leading institutions of higher education in the Nation. Admission is prized and competitive. In 2008, when petitioner sought admission to the University's entering class, she was 1 of 29,501 applicants. From this group 12,843 were admitted, and 6,715 accepted and enrolled. Petitioner was denied admission.

In recent years the University has used three different programs to evaluate candidates for admission. The first is the program it used for some years before 1997, when the University considered two factors: a numerical score reflecting an applicant's test scores and academic performance in high school (Academic Index or AI), and the applicant's race. In 1996, this system was held unconstitutional by the United States Court of Appeals for the Fifth Circuit. It ruled the University's consideration of race violated the Equal Protection Clause because it did not further any compelling government interest. Hopwood v. Texas, 78 F.3d 932, 955 (1996).

The second program was adopted to comply with the Hopwood decision. The University stopped considering race in admissions and substituted instead a new holistic metric of a candidate's potential contribution to the University, to be used in conjunction with the Academic Index. This "Personal Achievement Index" (PAI) measures a student's leadership and work experience, awards, extra-curricular activities, community service, and other special circumstances that give insight into a student's *2416 background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student's family. Seeking to address the decline in minority enrollment after Hopwood, the University also expanded its outreach programs.

The Texas State Legislature also responded to the Hopwood decision. It enacted a measure known as the Top Ten Percent Law, codified at Tex. Educ.Code Ann. § 51.803 (West 2009). Also referred to as H.B. 588, the Top Ten Percent Law grants automatic admission to any public state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards.

The University's revised admissions process, coupled with the operation of the Top Ten Percent Law, resulted in a more racially diverse environment at the University. Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African-American and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University's entering freshman class was 4.1% African-American and 14.5% Hispanic.

Following this Court's decisions in Grutter v. Bollinger, supra, and Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), the University adopted a third admissions program, the 2004 program in which the University reverted to explicit consideration of race. This is the program here at issue. In Grutter, the Court upheld the use of race as one of many "plus factors" in an admissions program that considered the overall individual contribution of each candidate. In Gratz, by contrast, the Court held unconstitutional Michigan's undergraduate admissions program, which automatically awarded points to applicants from certain racial minorities.

The University's plan to resume race-conscious admissions was given formal expression in June 2004 in an internal document entitled Proposal to Consider Race and Ethnicity in Admissions (Proposal). Supp. App. 1a. The Proposal relied in substantial part on a study of a subset of undergraduate classes containing between 5 and 24 students. It showed that few of these classes had significant enrollment by members of racial minorities. In addition the Proposal relied on what it called "anecdotal" reports from students regarding their "interaction in the classroom." The Proposal concluded that the University lacked a "critical mass" of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program.

To implement the Proposal the University included a student's race as a component of the PAI score, beginning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor.

Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not. Each college — such as Liberal Arts or Engineering — admits students separately. So a student is considered *2417 initially for her first-choice college, then for her second choice, and finally for general admission as an undeclared major.

Petitioner applied for admission to the University's 2008 entering class and was rejected. She sued the University and various University officials in the United States District Court for the Western District of Texas. She alleged that the University's consideration of race in admissions violated the Equal Protection Clause. The parties cross-moved for summary judgment. The District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit affirmed. It held that Grutter required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity's benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the University's admissions plan. 631 F.3d 213, 217-218 (2011).

Over the dissent of seven judges, the Court of Appeals denied petitioner's request for rehearing en banc. See 644 F.3d 301, 303 (C.A.5 2011) (per curiam). Petitioner sought a writ of certiorari. The writ was granted. 565 U.S. ___, 132 S.Ct. 1536, 182 L.Ed.2d 160 (2012).

B

Among the Court's cases involving racial classifications in education, there are three decisions that directly address the question of considering racial minority status as a positive or favorable factor in a university's admissions process, with the goal of achieving the educational benefits of a more diverse student body: Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750; Gratz, supra; and Grutter,539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304. We take those cases as given for purposes of deciding this case.

We begin with the principal opinion authored by Justice Powell in Bakke, supra. In Bakke, the Court considered a system used by the medical school of the University of California at Davis. From an entering class of 100 students the school had set aside 16 seats for minority applicants. In holding this program impermissible under the Equal Protection Clause Justice Powell's opinion stated certain basic premises. First, "decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment." Id., at 287, 98 S.Ct. 2733 (separate opinion). The principle of equal protection admits no "artificial line of a `two-class theory'" that "permits the recognition of special wards entitled to a degree of protection greater than that accorded others." Id., at 295, 98 S.Ct. 2733. It is therefore irrelevant that a system of racial preferences in admissions may seem benign. Any racial classification must meet strict scrutiny, for when government decisions "touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest." Id., at 299, 98 S.Ct. 2733.

Next, Justice Powell identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body. Redressing past discrimination could not serve as a compelling interest, because a university's "broad mission [of] education" is incompatible with making the "judicial, legislative, or administrative findings of constitutional or statutory violations" necessary to justify remedial racial classification. Id., at 307-309, 98 S.Ct. 2733.

*2418 The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes. The academic mission of a university is "a special concern of the First Amendment." Id., at 312, 98 S.Ct. 2733. Part of "`the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation,'" and this in turn leads to the question of "`who may be admitted to study.'" Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring in judgment).

Justice Powell's central point, however, was that this interest in securing diversity's benefits, although a permissible objective, is complex. "It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Bakke, 438 U.S., at 315, 98 S.Ct. 2733 (separate opinion).

In Gratz, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257, and Grutter, supra, the Court endorsed the precepts stated by Justice Powell. In Grutter, the Court reaffirmed his conclusion that obtaining the educational benefits of "student body diversity is a compelling state interest that can justify the use of race in university admissions." Id., at 325, 123 S.Ct. 2325.

As Gratz and Grutter observed, however, this follows only if a clear precondition is met: The particular admissions process used for this objective is subject to judicial review. Race may not be considered unless the admissions process can withstand strict scrutiny. "Nothing in Justice Powell's opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis." Gratz, supra, at 275, 123 S.Ct. 2411. "To be narrowly tailored, a race-conscious admissions program cannot use a quota system," Grutter, 539 U.S., at 334, 123 S.Ct. 2325, but instead must "remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application," id., at 337, 123 S.Ct. 2325. Strict scrutiny requires the university to demonstrate with clarity that its "purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary ... to the accomplishment of its purpose." Bakke, 438 U.S., at 305, 98 S.Ct. 2733 (opinion of Powell, J.) (internal quotation marks omitted).

While these are the cases that most specifically address the central issue in this case, additional guidance may be found in the Court's broader equal protection jurisprudence which applies in this context. "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people," Rice v. Cayetano, 528 U.S. 495, 517, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000) (internal quotation marks omitted), and therefore "are contrary to our traditions and hence constitutionally suspect," Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). "`[B]ecause racial characteristics so seldom provide a relevant basis for disparate treatment,'" Richmond v. J.A. Croson Co., 488 U.S. 469, 505, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (quoting Fullilove v. Klutznick, 448 U.S. 448, 533-534, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) *2419 (Stevens, J., dissenting)), "the Equal Protection Clause demands that racial classifications... be subjected to the `most rigid scrutiny.'" Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

To implement these canons, judicial review must begin from the position that "any official action that treats a person differently on account of his race or ethnic origin is inherently suspect." Fullilove, supra, at 523, 100 S.Ct. 2758 (Stewart, J., dissenting); McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). Strict scrutiny is a searching examination, and it is the government that bears the burden to prove "`that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate,'" Croson, supra, at 505, 109 S.Ct. 706 (quoting Fullilove, supra, 448 U.S., at 533-535, 100 S.Ct. 2758 (Stevens, J., dissenting)).

II

Grutter made clear that racial "classifications are constitutional only if they are narrowly tailored to further compelling governmental interests." 539 U.S., at 326, 123 S.Ct. 2325. And Grutter endorsed Justice Powell's conclusion in Bakke that "the attainment of a diverse student body ... is a constitutionally permissible goal for an institution of higher education." 438 U.S., at 311-312, 98 S.Ct. 2733(separate opinion). Thus, under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications.

According to Grutter, a university's "educational judgment that such diversity is essential to its educational mission is one to which we defer." 539 U.S., at 328, 123 S.Ct. 2325. Grutter concluded that the decision to pursue "the educational benefits that flow from student body diversity," id., at 330, 123 S.Ct. 2325, that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference to the University's conclusion, "`based on its experience and expertise,'" 631 F.3d, at 230 (quoting 645 F.Supp.2d 587, 603 (W.D.Tex.2009)), that a diverse student body would serve its educational goals. There is disagreement about whether Grutterwas consistent with the principles of equal protection in approving this compelling interest in diversity. See post, at 2422 (SCALIA, J., concurring); post, at 2423-2424 (THOMAS, J., concurring); post, at 2432-2433 (GINSBURG, J., dissenting). But the parties here do not ask the Court to revisit that aspect of Grutter's holding.

A university is not permitted to define diversity as "some specified percentage of a particular group merely because of its race or ethnic origin." Bakke, supra, at 307, 98 S.Ct. 2733 (opinion of Powell, J.). "That would amount to outright racial balancing, which is patently unconstitutional." Grutter, supra, at 330, 123 S.Ct. 2325. "Racial balancing is not transformed from `patently unconstitutional' to a compelling state interest simply by relabeling it `racial diversity.'" Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 732, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007).

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets *2420 strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that "[t]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose." 539 U.S., at 333, 123 S.Ct. 2325 (internal quotation marks omitted). True, a court can take account of a university's experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University's obligation to demonstrate, and the Judiciary's obligation to determine, that admissions processes "ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application." Id., at 337, 123 S.Ct. 2325.

Narrow tailoring also requires that the reviewing court verify that it is "necessary" for a university to use race to achieve the educational benefits of diversity. Bakke, supra, at 305, 98 S.Ct. 2733 This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although "[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative," strict scrutiny does require a court to examine with care, and not defer to, a university's "serious, good faith consideration of workable race-neutral alternatives." See Grutter, 539 U.S., at 339-340, 123 S.Ct. 2325 (emphasis added). Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If "`a nonracial approach... could promote the substantial interest about as well and at tolerable administrative expense,'" Wygant v. Jackson Bd. of Ed.,476 U.S. 267, 280, n. 6, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (quoting Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum. L.Rev. 559, 578-579 (1975)), then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university's adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.

Rather than perform this searching examination, however, the Court of Appeals held petitioner could challenge only "whether [the University's] decision to reintroduce race as a factor in admissions was made in good faith." 631 F.3d, at 236. And in considering such a challenge, the court would "presume the University acted in good faith" and place on petitioner the burden of rebutting that presumption. Id., at 231-232. The Court of Appeals held that to "second-guess the merits" of this aspect of the University's decision was a task it was "ill-equipped to perform" and that it would attempt only to "ensure that [the University's] decision to adopt a race-conscious admissions policy followed from [a process of] good faith consideration." Id., at 231. The Court of Appeals thus concluded that "the narrow-tailoring inquiry — like the compelling-interest inquiry — is undertaken with a degree of deference to the Universit[y]." Id., at 232. Because "the efforts of the University have been studied, serious, and of high purpose," the Court of Appeals held that the use of race in the admissions *2421 program fell within "a constitutionally protected zone of discretion." Id., at 231.

These expressions of the controlling standard are at odds with Grutter's command that "all racial classifications imposed by government `must be analyzed by a reviewing court under strict scrutiny.'" 539 U.S., at 326, 123 S.Ct. 2325 (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)). In Grutter, the Court approved the plan at issue upon concluding that it was not a quota, was sufficiently flexible, was limited in time, and followed "serious, good faith consideration of workable race-neutral alternatives." 539 U.S., at 339, 123 S.Ct. 2325. As noted above, see supra, at 2415, the parties do not challenge, and the Court therefore does not consider, the correctness of that determination.

Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be remembered that "the mere recitation of a `benign' or legitimate purpose for a racial classification is entitled to little or no weight." Croson, 488 U.S., at 500, 109 S.Ct. 706. Strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.

The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts. "[T]he analysis and level of scrutiny applied to determine the validity of [a racial] classification do not vary simply because the objective appears acceptable.... While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change." Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, n. 9, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982).

The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University's good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. See Adarand, supra, at 237, 115 S.Ct. 2097. Unlike Grutter, which was decided after trial, this case arises from cross-motions for summary judgment. In this case, as in similar cases, in determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. Whether this record — and not "simple ... assurances of good intention," Croson, supra, at 500, 109 S.Ct. 706— is sufficient is a question for the Court of Appeals in the first instance.

* * *

Strict scrutiny must not be "`strict in theory, but fatal in fact,'" Adarand, supra, at 237, 115 S.Ct. 2097; see also Grutter, supra, at 326, 123 S.Ct. 2325. But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that "encompasses a ... broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Bakke, 438 U.S., at 315, 98 S.Ct. 2733 *2422 (opinion of Powell, J.). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice KAGAN took no part in the consideration or decision of this case.

Justice SCALIA, concurring.

I adhere to the view I expressed in Grutter v. Bollinger: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception." 539 U.S. 306, 349, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (opinion concurring in part and dissenting in part). The petitioner in this case did not ask us to overrule Grutter's holding that a "compelling interest" in the educational benefits of diversity can justify racial preferences in university admissions. Tr. of Oral Arg. 8-9. I therefore join the Court's opinion in full.

Justice THOMAS, concurring.

I join the Court's opinion because I agree that the Court of Appeals did not apply strict scrutiny to the University of Texas at Austin's (University) use of racial discrimination in admissions decisions. Ante, at 2415. I write separately to explain that I would overrule Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), and hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.

I

A

The Fourteenth Amendment provides that no State shall "deny to any person ... the equal protection of the laws." The Equal Protection Clause guarantees every person the right to be treated equally by the State, without regard to race. "At the heart of this [guarantee] lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups." Missouri v. Jenkins, 515 U.S. 70, 120-121, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (THOMAS, J., concurring). "It is for this reason that we must subject all racial classifications to the strictest of scrutiny." Id., at 121, 115 S.Ct. 2038.

Under strict scrutiny, all racial classifications are categorically prohibited unless they are "`necessary to further a compelling governmental interest'" and "narrowly tailored to that end." Johnson v. California, 543 U.S. 499, 514, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (quoting Grutter, supra, at 327, 123 S.Ct. 2325). This most exacting standard "has proven automatically fatal" in almost every case. Jenkins, supra, at 121, 115 S.Ct. 2038 (THOMAS, J., concurring). And rightly so. "Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that [racial] classifications ultimately have a destructive impact on the individual and our society." Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 240, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (THOMAS, J., concurring in part and concurring in judgment). "The Constitution abhors classifications based on race" because "every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all." Grutter, supra, at 353, 123 S.Ct. 2325 (THOMAS, J., concurring in part and dissenting in part).

B

1

The Court first articulated the strict-scrutiny standard in Korematsu v. United *2423States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). There, we held that "[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can." Id., at 216, 65 S.Ct. 193.1 Aside from Grutter, the Court has recognized only two instances in which a "[p]ressing public necessity" may justify racial discrimination by the government. First, in Korematsu, the Court recognized that protecting national security may satisfy this exacting standard. In that case, the Court upheld an evacuation order directed at "all persons of Japanese ancestry" on the grounds that the Nation was at war with Japan and that the order had "a definite and close relationship to the prevention of espionage and sabotage." 323 U.S., at 217-218, 65 S.Ct. 193. Second, the Court has recognized that the government has a compelling interest in remedying past discrimination for which it is responsible, but we have stressed that a government wishing to use race must provide "a `strong basis in evidence for its conclusion that remedial action [is] necessary.'" Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 504, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (quoting Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 277, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion)).

In contrast to these compelling interests that may, in a narrow set of circumstances, justify racial discrimination, the Court has frequently found other asserted interests insufficient. For example, in Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), the Court flatly rejected a claim that the best interests of a child justified the government's racial discrimination. In that case, a state court awarded custody to a child's father because the mother was in a mixed-race marriage. The state court believed the child might be stigmatized by living in a mixed-race household and sought to avoid this perceived problem in its custody determination. We acknowledged the possibility of stigma but nevertheless concluded that "the reality of private biases and the possible injury they might inflict" do not justify racial discrimination. Id., at 433, 104 S.Ct. 1879. As we explained, "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Ibid.

Two years later, in Wygant, supra, the Court held that even asserted interests in remedying societal discrimination and in providing role models for minority students could not justify governmentally imposed racial discrimination. In that case, a collective-bargaining agreement between a school board and a teacher's union favored teachers who were "`Black, American Indian, Oriental, or of Spanish descendancy.'" Id., at 270-271, and n. 2, 106 S.Ct. 1842 (plurality opinion). We rejected the interest in remedying societal discrimination because it had no logical stopping point. Id., at 276, 106 S.Ct. 1842. We similarly rebuffed as inadequate the interest in providing role models to minority students and added that the notion that "black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)." Ibid.

2

Grutter was a radical departure from our strict-scrutiny precedents. In Grutter, the University of Michigan Law School (Law School) claimed that it had a compelling reason to discriminate based on race. *2424 The reason it advanced did not concern protecting national security or remedying its own past discrimination. Instead, the Law School argued that it needed to discriminate in admissions decisions in order to obtain the "educational benefits that flow from a diverse student body." 539 U.S., at 317, 123 S.Ct. 2325. Contrary to the very meaning of strict scrutiny, the Court deferred to the Law School's determination that this interest was sufficiently compelling to justify racial discrimination. Id., at 325, 123 S.Ct. 2325.

I dissented from that part of the Court's decision. I explained that "only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a `pressing public necessity'" sufficient to satisfy strict scrutiny. Id., at 353, 123 S.Ct. 2325. Cf. Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (Black, J., concurring) (protecting prisoners from violence might justify narrowly tailored discrimination); J.A. Croson, supra, at 521, 109 S.Ct. 706 (SCALIA, J., concurring in judgment) ("At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb ... can justify [racial discrimination]"). I adhere to that view today. As should be obvious, there is nothing "pressing" or "necessary" about obtaining whatever educational benefits may flow from racial diversity.

II

A

The University claims that the District Court found that it has a compelling interest in attaining "a diverse student body and the educational benefits flowing from such diversity." Brief for Respondents 18. The use of the conjunction, "and," implies that the University believes its discrimination furthers two distinct interests. The first is an interest in attaining diversity for its own sake. The second is an interest in attaining educational benefits that allegedly flow from diversity.

Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible "racial balancing." 539 U.S., at 329-330, 123 S.Ct. 2325 ("The Law School's interest is not simply `to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.' That would amount to outright racial balancing, which is patently unconstitutional" (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); citation omitted)); see also id., at 307, 98 S.Ct. 2733 ("Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids"). Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.

Unfortunately for the University, the educational benefits flowing from student body diversity — assuming they exist — hardly qualify as a compelling state interest. Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950's, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, see Brown v. Board of Education,347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the alleged educational benefits of diversity *2425 cannot justify racial discrimination today.

1

Our desegregation cases establish that the Constitution prohibits public schools from discriminating based on race, even if discrimination is necessary to the schools' survival. In Davis v. School Bd. of Prince Edward Cty., decided with Brown, supra, the school board argued that if the Court found segregation unconstitutional, white students would migrate to private schools, funding for public schools would decrease, and public schools would either decline in quality or cease to exist altogether. Brief for Appellees in Davis v. School Bd. of Prince Edward Cty., O.T. 1952, No. 191, p. 30 (hereinafter Brief for Appellees in Davis) ("Virginians ... would no longer permit sizeable appropriations for schools on either the State or local level; private segregated schools would be greatly increased in number and the masses of our people, both white and Negro, would suffer terribly.... [M]any white parents would withdraw their children from the public schools and, as a result, the program of providing better schools would be abandoned" (internal quotation marks omitted)). The true victims of desegregation, the school board asserted, would be black students, who would be unable to afford private school. See id., at 31 ("[W]ith the demise of segregation, education in Virginia would receive a serious setback. Those who would suffer most would be the Negroes who, by and large, would be economically less able to afford the private school"); Tr. of Oral Arg. in Davis v. School Bd. of Prince Edward Cty., O.T. 1954, No. 3, p. 208 ("What is worst of all, in our opinion, you impair the public school system of Virginia and the victims will be the children of both races, we think the Negro race worse than the white race, because the Negro race needs it more by virtue of these disadvantages under which they have labored. We are up against the proposition: What does the Negro profit if he procures an immediate detailed decree from this Court now and then impairs or mars or destroys the public school system in Prince Edward County").2

Unmoved by this sky-is-falling argument, we held that segregation violates the principle of equality enshrined in the Fourteenth Amendment. See Brown, supra, at 495, 74 S.Ct. 686 ("[I]n the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal"); see also Allen v. School Bd. of Prince Edward Cty., 249 F.2d 462, 465 (C.A.4 1957) (per curiam) ("The fact that the schools might be closed if the order were enforced is no reason for not enforcing it. A person may not be denied enforcement of rights to *2426 which he is entitled under the Constitution of the United States because of action taken or threatened in defiance of such rights"). Within a matter of years, the warning became reality: After being ordered to desegregate, Prince Edward County closed its public schools from the summer of 1959 until the fall of 1964. See R. Sarratt, The Ordeal of Desegregation 237 (1966). Despite this fact, the Court never backed down from its rigid enforcement of the Equal Protection Clause's antidiscrimination principle.

In this case, of course, Texas has not alleged that the University will close if it is prohibited from discriminating based on race. But even if it had, the foregoing cases make clear that even that consequence would not justify its use of racial discrimination. It follows, a fortiori, that the putative educational benefits of student body diversity cannot justify racial discrimination: If a State does not have a compelling interest in the existence of a university, it certainly cannot have a compelling interest in the supposed benefits that might accrue to that university from racial discrimination. See Grutter, 539 U.S., at 361, 123 S.Ct. 2325 (opinion of THOMAS, J.) ("[A] marginal improvement in legal education cannot justify racial discrimination where the Law School has no compelling interest either in its existence or in its current educational and admissions policies"). If the Court were actually applying strict scrutiny, it would require Texas either to close the University or to stop discriminating against applicants based on their race. The Court has put other schools to that choice, and there is no reason to treat the University differently.

2

It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. See, e.g., Brief for Respondents 6 (arguing that student body diversity "prepares students to become the next generation of leaders in an increasingly diverse society"). The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks. See, e.g., Brief for Respondents in Sweatt 96 ("[A] very large group of Northern Negroes [comes] South to attend separate colleges, suggesting that the Negro does not secure as well-rounded a college life at a mixed college, and that the separate college offers him positive advantages; that there is a more normal social life for the Negro in a separate college; that there is a greater opportunity for full participation and for the development of leadership; that the Negro is inwardly more `secure' at a college of his own people"); Brief for Appellees in Davis 25-26 ("The Negro child gets an opportunity to participate in segregated schools that I have never seen accorded to him in non-segregated schools. He is important, he holds offices, he is accepted by his fellows, he is on athletic teams, he has a full place there" (internal quotation marks omitted)). This argument was unavailing. It is irrelevant under the Fourteenth Amendment whether segregated or mixed schools produce better leaders. Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the University's racial discrimination cannot be justified on the ground that it will produce better leaders.

*2427 The University also asserts that student body diversity improves interracial relations. See, e.g., Brief for Respondents 6 (arguing that student body diversity promotes "cross-racial understanding" and breaks down racial and ethnic stereotypes). In this argument, too, the University repeats arguments once marshaled in support of segregation. See, e.g., Brief for Appellees in Davis 17 ("Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races"); id., at 25 ("If segregation be stricken down, the general welfare will be definitely harmed... there would be more friction developed" (internal quotation marks omitted)); Brief for Respondents in Sweatt 93 ("Texas has had no serious breaches of the peace in recent years in connection with its schools. The separation of the races has kept the conflicts at a minimum"); id., at 97-98 ("The legislative acts are based not only on the belief that it is the best way to provide education for both races, and the knowledge that separate schools are necessary to keep public support for the public schools, but upon the necessity to maintain the public peace, harmony, and welfare"); Brief for Appellees in Briggs 32 ("The southern Negro, by and large, does not want an end to segregation in itself any more than does the southern white man. The Negro in the South knows that discriminations, and worse, can and would multiply in such event" (internal quotation marks omitted)). We flatly rejected this line of arguments in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950), where we held that segregation would be unconstitutional even if white students never tolerated blacks. Id., at 641, 70 S.Ct. 851 ("It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference — a Constitutional difference — between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar"). It is, thus, entirely irrelevant whether the University's racial discrimination increases or decreases tolerance.

Finally, while the University admits that racial discrimination in admissions is not ideal, it asserts that it is a temporary necessity because of the enduring race consciousness of our society. See Brief for Respondents 53-54 ("Certainly all aspire for a colorblind society in which race does not matter.... But in Texas, as in America, `our highest aspirations are yet unfulfilled'"). Yet again, the University echoes the hollow justifications advanced by the segregationists. See, e.g., Brief for State of Kansas on Reargument in Brown v. Board of Education, O.T. 1953, No. 1, p. 56 ("We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal"); Brief for Respondents in Sweatt 94 ("The racial consciousness and feeling which exists today in the minds of many people may be regrettable and unjustified. Yet they are a reality which must be dealt with by the State if it is to preserve harmony and peace and at the same time furnish equal education to both groups"); id., at 96 ("`[T]he mores of racial relationships are such as to rule out, for the present at least, any possibility of admitting white persons and Negroes to the same institutions'"); Brief for Appellees in Briggs 26-27 ("[I]t would be unwise in administrative practice ... to mix the two races in the same schools at the present *2428 time and under present conditions"); Brief for Appellees on Reargument in Briggs v. Elliott, O.T. 1953, No. 2, p. 79 ("It is not `racism' to be cognizant of the fact that mankind has struggled with race problems and racial tensions for upwards of sixty centuries"). But these arguments too were unavailing. The Fourteenth Amendment views racial bigotry as an evil to be stamped out, not as an excuse for perpetual racial tinkering by the State. See DeFunis v. Odegaard,416 U.S. 312, 342, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (Douglas, J., dissenting)("The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized"). The University's arguments to this effect are similarly insufficient to justify discrimination.3

3

The University's arguments today are no more persuasive than they were 60 years ago. Nevertheless, despite rejecting identical arguments in Brown, the Court in Grutter deferred to the University's determination that the diversity obtained by racial discrimination would yield educational benefits. There is no principled distinction between the University's assertion that diversity yields educational benefits and the segregationists' assertion that segregation yielded those same benefits. See Grutter, 539 U.S., at 365-366, 123 S.Ct. 2325 (opinion of THOMAS, J.) ("Contained within today's majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejected — racial segregation"). Educational benefits are a far cry from the truly compelling state interests that we previously required to justify use of racial classifications.

B

My view of the Constitution is the one advanced by the plaintiffs in Brown: "[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens." Tr. of Oral Arg. in Brown v. Board of Education, O.T. 1952, No. 8, p. 7; see also Juris. Statement in Davis v. School Bd. of Prince Edward Cty., O.T. 1952, No. 191, p. 8 ("[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action"); Brief for Appellants in Brown v. Board of Education, O.T. 1952, No. 8, p. 5 ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone"); Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O.T. 1953, p. 65 ("That the Constitution is color blind is our dedicated belief"). The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants *2429 must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.

This principle is neither new nor difficult to understand. In 1868, decades before Plessy, the Iowa Supreme Court held that schools may not discriminate against applicants based on their skin color. In Clark v. Board of Directors, 24 Iowa 266 (1868), a school denied admission to a student because she was black, and "public sentiment [was] opposed to the intermingling of white and colored children in the same schools." Id., at 269. The Iowa Supreme Court rejected that flimsy justification, holding that "all the youths are equal before the law, and there is no discretion vested in the board ... or elsewhere, to interfere with or disturb that equality." Id., at 277. "For the courts to sustain a board of school directors ... in limiting the rights and privileges of persons by reason of their [race], would be to sanction a plain violation of the spirit of our laws not only, but would tend to perpetuate the national differences of our people and stimulate a constant strife, if not a war of races." Id., at 276. This simple, yet fundamental, truth was lost on the Court in Plessy and Grutter.

I would overrule Grutter and hold that the University's admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.

III

While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University's program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. See post, at 2433-2434 (GINSBURG, J., dissenting) ("[G]overnment actors, including state universities, need not be blind to the lingering effects of `an overtly discriminatory past,' the legacy of `centuries of law-sanctioned inequality'"). But "[h]istory should teach greater humility." Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 609, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (O'Connor, J., dissenting). The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

A

Slaveholders argued that slavery was a "positive good" that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U.S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58-59 (2003) ("Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually.... [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good — a positive good"); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115-116 (D. Faust ed. 1981) ("Slavery, as it is said in an eloquent article published in a Southern periodical work ... `has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth'"); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 ("They are elevated from the *2430 condition in which God first created them, by being made our slaves").

A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers. See, e.g., Brief for Appellees in Briggs 33-34 ("`I have repeatedly seen wise and loving colored parents take infinite pains to force their little children into schools where the white children, white teachers, and white parents despised and resented the dark child, made mock of it, neglected or bullied it, and literally rendered its life a living hell. Such parents want their child to "fight" this thing out, — but, dear God, at what a cost! ... We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted, and where they are happy and inspired, than in thrusting them into hells where they are ridiculed and hated'" (quoting DuBois, Does the Negro Need Separate Schools? 4 J. of Negro Educ. 328, 330-331 (1935))); Tr. of Oral Arg. in Bolling v. Sharpe, O.T. 1952, No. 413, p. 56 ("There was behind these [a]cts a kindly feeling [and] an intention to help these people who had been in bondage. And there was and there still is an intention by the Congress to see that these children shall be educated in a healthful atmosphere, in a wholesome atmosphere, in a place where they are wanted, in a place where they will not be looked upon with hostility, in a place where there will be a receptive atmosphere for learning for both races without the hostility that undoubtedly Congress thought might creep into these situations"). And they even appealed to the fact that many blacks agreed that separate schools were in the "best interests" of both races. See, e.g., Brief for Appellees in Davis 24-25 ("`It has been my experience, in working with the people of Virginia, including both white and Negro, that the customs and the habits and the traditions of Virginia citizens are such that they believe for the best interests of both the white and the Negro that the separate school is best'").

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. "`[B]enign' carries with it no independent meaning, but reflects only acceptance of the current generation's conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable." See Metro Broadcasting, 497 U.S., at 610, 110 S.Ct. 2997 (O'Connor, J., dissenting). It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. See, e.g., Johnson, 543 U.S., at 505, 125 S.Ct. 1141 ("We have insisted on strict scrutiny in every context, even for so-called `benign' racial classifications"); Adarand, 515 U.S., at 227, 115 S.Ct. 2097 ("[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny"); J.A. Croson, 488 U.S., at 500, 109 S.Ct. 706 ("Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice"). The University's professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

B

While it does not, for constitutional purposes, matter whether the University's racial discrimination is benign, I note that *2431 racial engineering does in fact have insidious consequences. There can be no doubt that the University's discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University's discriminatory admissions program is even more harmful.

Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates. In the University's entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. Brief for Richard Sander et al. as Amici Curiae 3-4, and n. 4. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991.4 Ibid.

Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University. Cf. Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L.Rev. 1583, 1605-1608 (1999) (discussing the failure of defenders of racial discrimination in admissions to consider the fact that its "beneficiaries" are underperforming in the classroom). "It is a fact that in virtually all selective schools ... where racial preferences in admission is practiced, the majority of [black] students end up in the lower quarter of their class." S. Cole & E. Barber, Increasing Faculty Diversity: The Occupational Choices of High-Achieving Minority Students 124 (2003). There is no reason to believe this is not the case at the University. The University and its dozens of amici are deafeningly silent on this point.

Furthermore, the University's discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally. Instead, the University's discrimination has a pervasive shifting effect. See T. Sowell, Affirmative Action Around the World 145-146 (2004). The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched. But, as a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete. Setting aside the damage wreaked upon the self-confidence of these overmatched students, there is no evidence that they learn more at the University than they would have learned at other schools for which they were better prepared. Indeed, they may learn less.

The Court of Appeals believed that the University needed to enroll more blacks and Hispanics because they remained "clustered in certain programs." 631 F.3d 213, 240 (C.A.5 2011) ("[N]early a quarter of the undergraduate students in [the University's] College of Social Work are Hispanic, and more than 10% are [black]. In the College of Education, 22.4% of students are Hispanic and 10.1% are [black]"). But racial discrimination may be the cause of, not the solution to, this clustering. There is some evidence that students admitted *2432 as a result of racial discrimination are more likely to abandon their initial aspirations to become scientists and engineers than are students with similar qualifications who attend less selective schools. See, e.g., Elliott, Strenta, Adair, Matier, & Scott, The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions, 37 Research in Higher Educ. 681, 699-701 (1996).5 These students may well drift towards less competitive majors because the mismatch caused by racial discrimination in admissions makes it difficult for them to compete in more rigorous majors.

Moreover, the University's discrimination "stamp[s] [blacks and Hispanics] with a badge of inferiority." Adarand, 515 U.S., at 241, 115 S.Ct. 2097 (opinion of THOMAS, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination. Cf. J. McWhorter, Losing the Race: Self-Sabotage in Black America 248 (2000) ("I was never able to be as proud of getting into Stanford as my classmates could be.... [H]ow much of an achievement can I truly say it was to have been a good enough black person to be admitted, while my colleagues had been considered good enough people to be admitted"). And, it taints the accomplishments of all those who are the same race as those admitted as a result of racial discrimination. In this case, for example, most blacks and Hispanics attending the University were admitted without discrimination under the Top Ten Percent plan, but no one can distinguish those students from the ones whose race played a role in their admission. "When blacks [and Hispanics] take positions in the highest places of government, industry, or academia, it is an open question ... whether their skin color played a part in their advancement." See Grutter, 539 U.S., at 373, 123 S.Ct. 2325 (opinion of THOMAS, J.). "The question itself is the stigma — because either racial discrimination did play a role, in which case the person may be deemed `otherwise unqualified,' or it did not, in which case asking the question itself unfairly marks those ... who would succeed without discrimination." Ibid. Although cloaked in good intentions, the University's racial tinkering harms the very people it claims to be helping.

* * *

For the foregoing reasons, I would overrule Grutter. However, because the Court correctly concludes that the Court of Appeals did not apply strict scrutiny, I join its opinion.

1

 The standard of "pressing public necessity" is more frequently called a "compelling governmental interest." I use the terms interchangeably.

2

 Similar arguments were advanced unsuccessfully in other cases as well. See, e.g., Brief for Respondents in Sweatt v. Painter, O.T. 1949, No. 44, pp. 94-95 (hereinafter Brief for Respondents in Sweatt) ("[I]f the power to separate the students were terminated,... it would be as a bonanza to the private white schools of the State, and it would mean the migration out of the schools and the turning away from the public schools of the influence and support of a large number of children and of the parents of those children ... who are the largest contributors to the cause of public education, and whose financial support is necessary for the continued progress of public education.... Should the State be required to mix the public schools, there is no question but that a very large group of students would transfer, or be moved by their parents, to private schools with a resultant deterioration of the public schools" (internal quotation marks omitted)); Brief for Appellees in Briggs v. Elliott, O.T. 1952, No. 101, p. 27 (hereinafter Brief for Appellees in Briggs) ("[I]t would be impossible to have sufficient acceptance of the idea of mixed groups attending the same schools to have public education on that basis at all.... [I]t would eliminate the public schools in most, if not all, of the communities in the State").

3

 While the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists, one obvious difference is that the segregationists argued that it was segregation that was necessary to obtain the alleged benefits, whereas the University argues that diversity is the key. Today, the segregationists' arguments would never be given serious consideration. But see M. Plocienniczak, Pennsylvania School Experiments with `Segregation,' CNN (Jan. 27, 2011), http://www.cnn.com/2011/US/01/27/pennsylvania.segregation/index.html?_s=PM:US (as visited June 21, 2013, and available in Clerk of Court's case file). We should be equally hostile to the University's repackaged version of the same arguments in support of its favored form of racial discrimination.

4

 The lowest possible score on the SAT is 600, and the highest possible score is 2400.

5

 The success of historically black colleges at producing graduates who go on to earn graduate degrees in science and engineering is well documented. See, e.g., National Science Foundation, J. Burrelli & A. Rapoport, Info-Brief, Role of HBCUs as Baccalaureate-Origin Institutions of Black S & E Doctorate Recipients 6 (2008) (Table 2) (showing that, from 1997-2006, Howard University had more black students who went on to earn science and engineering doctorates than any other undergraduate institution, and that 7 other historically black colleges ranked in the top 10); American Association of Medical Colleges, Diversity in Medical Education: Facts & Figures 86 (2012) (Table 19) (showing that, in 2011, Xavier University had more black students who went on to earn medical degrees than any other undergraduate institution and that Howard University was second).

JUSTICE GINSBURG, dissenting.

The University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 316-317, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). The University has steered clear of a quota system *2433 like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats. See id., at 272-275, 315, 319-320, 98 S.Ct. 2733 (opinion of Powell, J.). See also Gratz v. Bollinger, 539 U.S. 244, 293, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (Souter, J., dissenting) ("Justice Powell's opinion in [Bakke] rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class."). And, like so many educational institutions across the Nation,1 the University has taken care to follow the model approved by the Court in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). See 645 F.Supp.2d 587, 609 (W.D.Tex.2009) ("[T]he parties agree [that the University's] policy was based on the [admissions] policy [upheld in Grutter].").

Petitioner urges that Texas' Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz,539 U.S., at 303-304, n. 10, 123 S.Ct. 2411 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from "the disadvantage of deliberate obfuscation." Id., at 297-298, 123 S.Ct. 2411 (dissenting opinion).

Texas' percentage plan was adopted with racially segregated neighborhoods and schools front and center stage. See House Research Organization, Bill Analysis, HB 588, pp. 4-5 (Apr. 15, 1997) ("Many regions of the state, school districts, and high schools in Texas are still predominantly composed of people from a single racial or ethnic group. Because of the persistence of this segregation, admitting the top 10 percent of all high schools would provide a diverse population and ensure that a large, well qualified pool of minority students was admitted to Texas universities."). It is race consciousness, not blindness to race, that drives such plans.2 As for holistic review, if universities cannot explicitly include race as a factor, many may "resort to camouflage" to "maintain their minority enrollment." Gratz, 539 U.S., at 304, 123 S.Ct. 2411 (GINSBURG, J., dissenting).

I have several times explained why government actors, including state universities, need not be blind to the lingering effects of "an overtly discriminatory past," the legacy of "centuries of law-sanctioned inequality." Id., at 298, 123 S.Ct. 2411(dissenting opinion). See also Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 272-274, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (dissenting opinion). Among constitutionally permissible options, I remain convinced, "those that candidly disclose their consideration of race [are] preferable to those that conceal it." Gratz,539 U.S., *2434 at 305, n. 11, 123 S.Ct. 2411 (dissenting opinion).

Accordingly, I would not return this case for a second look. As the thorough opinions below show, 631 F.3d 213 (C.A.5 2011); 645 F.Supp.2d 587, the University's admissions policy flexibly considers race only as a "factor of a factor of a factor of a factor" in the calculus, id., at 608; followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity, see 631 F.3d, at 225-226; and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University's educational objectives, see id., at 226.3 Justice Powell's opinion in Bakke and the Court's decision in Grutter require no further determinations. See Grutter, 539 U.S., at 333-343, 123 S.Ct. 2325; Bakke, 438 U.S., at 315-320, 98 S.Ct. 2733.

The Court rightly declines to cast off the equal protection framework settled in Grutter. See ante, at 2417. Yet it stops short of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals' judgment and remands for the Court of Appeals to "assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." Ante, at 2421. As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court's Bakke and Grutter pathmarkers, merits our approbation.4

* * *

For the reasons stated, I would affirm the judgment of the Court of Appeals.

1

 See Brief for Amherst College et al. as Amici Curiae 33-35; Brief for Association of American Law Schools as Amicus Curiae 6; Brief for Association of American Medical Colleges et al. as Amici Curiae30-32; Brief for Brown University et al. as Amici Curiae 2-3, 13; Brief for Robert Post et al. as Amici Curiae 24-27; Brief for Fordham University et al. as Amici Curiae 5-6; Brief for University of Delaware et al. as Amici Curiae 16-21.

2

 The notion that Texas' Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell's famous statement: "If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind." T. Arnold, The Symbols of Government 101 (1935) (internal quotation marks omitted). Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.

3

 As the Court said in Grutter v. Bollinger, 539 U.S. 306, 339, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003),"[n]arrow tailoring ... require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks." But, Grutter also explained, it does not "require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunities to members of all racial groups." Ibid. I do not read the Court to say otherwise. See ante, at 2420 (acknowledging that, in determining whether a race-conscious admissions policy satisfies Grutter's narrow-tailoring requirement, "a court can take account of a university's experience and expertise in adopting or rejecting certain admissions processes").

4

 Because the University's admissions policy, in my view, is constitutional under Grutter, there is no need for the Court in this case "to revisit whether all governmental classifications by race, whether designed to benefit or to burden a historically disadvantaged group, should be subject to the same standard of judicial review." 539 U.S., at 346, n., 123 S.Ct. 2325 (GINSBURG, J., concurring). See also Gratz v. Bollinger, 539 U.S. 244, 301, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (GINSBURG, J., dissenting) ("Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.").

Board of the Trustees of University of Alabama et al., Petitioners, v. Patricia Garrett et al.

Argued October 11, 2000.

Decided February 21, 2001.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

*358 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which O'Connor, J., joined, post, p. 374. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 376.

Jeffrey S. Sutton argued the cause for petitioners. With him on the briefs were Bill Pryor, Attorney General of Alabama, Alice Ann Byrne and Margaret L. Fleming,Assistant Attorneys General, Gregory G. Katsas, and Lisa Huggins.

Michael H. Gottesman argued the cause for respondents. With him on the brief were Arlene Mayerson, Laurence Gold, Deborah Mattison, Sandra Reiss, Ira Burnim, and Jennifer Mathis.

Solicitor General Waxman argued the cause for the United States as amicus curiae urging affirmance. With *359 him on the brief were Assistant Attorney General Lee, Deputy Solicitor General Underwood, Patricia A. Millett, Jessica Dunsay Silver, and Seth M. Galanter.*

*

 Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by Audrey J. Anderson, Earl I. Anzai, Attorney General of Hawaii, Charles F. Fell, Senior Deputy Attorney General, and Nancy Albano, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Alan G. Lance of Idaho, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Betty D. Montgomery of Ohio, and Paul G. Summers of Tennessee; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Pacific Legal Foundation by Anne M. Hayes and M. Reed Hopper.

Briefs of amici curiae urging affirmance were filed for the State of Minnesota et al. by Mike Hatch,Attorney General of Minnesota, Alan I. Gilbert, Chief Deputy Attorney General, and W. Karl Hansen,Assistant Attorney General, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Richard Blumenthal of Connecticut, James E. Ryan of Illinois, Thomas J. Miller of Iowa, A. B. "Ben" Chandler III of Kentucky, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the American Association on Mental Retardation et al. by James W. Ellis, Michael B. Browde, and Christian G. Fritz; for the American Association of People with Disabilities et al. by John Townsend Rich; for the American Bar Association by Robert Lewin, James A. Shifren, and Claude G. Szyfer; for the American Cancer Society by Daniel G. Jarcho, Michael J. Haungs, William J. Dalton,and Mary P. Rouvelas; for the Lambda Legal Defense & Education Fund, Inc., et al. by Catherine A. Hanssens and David S. Buckel; for the National Association of Protection and Advocacy Systems et al. by Mark E. Haddad, Jacqueline G. Cooper, and Sharon Masling; for the National Council on Disability by Robert L. Burgdorf, Jr.; for Self-Advocates Becoming Empowered et al. by Thomas K. Gilhool, Michael Churchill, Barbara Ransom, and Max Lapertosa; for the Voice of the Retarded et al. by William J. Burke and Tamie Hopp; for Senator Robert Dole et al. by Chai R. Feldblum; and for Law Professors by Leo G. Rydzewski.

Briefs of amici curiae were filed for the Association of State Correctional Administrators by Marci A. Hamilton; for the Coalition for Local Sovereignty by Kenneth B. Clark; for the National Employment Lawyers Association et al. by Daniel F. Goldstein, C. Christopher Brown, and Merl H. Wayman; for Paralyzed Veterans of America et al. by Ted G. Dane and Eve Hill; for the Southern Poverty Law Center by Pamela L. Sumners and Elizabeth J. Hubertz; and for Morton Horwitz et al. by Kenneth W. Brothers, Elizabeth B. McCallum, and Claudia Center. A. Stephen Hut, Jr., filed a statement by former President George H. W. Bush as amicus curiae.

*360 Chief Justice Rehnquist delivered the opinion of the Court.

We decide here whether employees of the State of Alabama may recover money damages by reason of the State's failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 330, 42 U. S. C. §§ 12111-12117.1 We hold that such suits are barred by the Eleventh Amendment.

The ADA prohibits certain employers, including the States, from "discriminat[ing] against a qualified individual *361 with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." §§ 12112(a), 12111(2), (5), (7). To this end, the Act requires employers to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business." § 12112(b)(5)(A).

"`[R]easonable accommodation' may include— "(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." § 12111(9).

The Act also prohibits employers from "utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability." § 12112(b)(3)(A).

The Act defines "disability" to include "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." § 12102(2). A disabled individual is otherwise "qualified" if he or she, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." § 12111(8).

*362 Respondent Patricia Garrett, a registered nurse, was employed as the Director of Nursing, OB/Gyn/Neonatal Services, for the University of Alabama in Birmingham Hospital. See App. 31, 38. In 1994, Garrett was diagnosed with breast cancer and subsequently underwent a lumpectomy, radiation treatment, and chemotherapy. See id., at 38. Garrett's treatments required her to take substantial leave from work. Upon returning to work in July 1995, Garrett's supervisor informed Garrett that she would have to give up her Director position. See id., at 39. Garrett then applied for and received a transfer to another, lower paying position as a nurse manager. See ibid.

Respondent Milton Ash worked as a security officer for the Alabama Department of Youth Services (Department). See id., at 8. Upon commencing this employment, Ash informed the Department that he suffered from chronic asthma and that his doctor recommended he avoid carbon monoxide and cigarette smoke, and Ash requested that the Department modify his duties to minimize his exposure to these substances. See ibid. Ash was later diagnosed with sleep apnea and requested, again pursuant to his doctor's recommendation, that he be reassigned to daytime shifts to accommodate his condition. See id., at 9. Ultimately, the Department granted none of the requested relief. See id., at 8-9. Shortly after Ash filed a discrimination claim with the Equal Employment Opportunity Commission, he noticed that his performance evaluations were lower than those he had received on previous occasions. See id., at 9.

Garrett and Ash filed separate lawsuits in the District Court, both seeking money damages under the ADA.2 Petitioners moved for summary judgment, claiming that the ADA exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. See 989 F. Supp. 1409, 1410 (ND Ala. 1998). In a single opinion disposing of both *363 cases, the District Court agreed with petitioners' position and granted their motions for summary judgment. See id., at 1410, 1412. The cases were consolidated on appeal to the Eleventh Circuit. The Court of Appeals reversed, 193 F. 3d 1214 (1999), adhering to its intervening decision in Kimel v. State Bd. of Regents, 139 F. 3d 1426, 1433 (CA11 1998), aff'd, 528 U. S. 62 (2000), that the ADA validly abrogates the States' Eleventh Amendment immunity.

We granted certiorari, 529 U. S. 1065 (2000), to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court under the ADA.

I

The Eleventh Amendment provides:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States. See Kimel v. Florida Bd. of Regents,528 U. S. 62, 72-73 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 669-670 (1999); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996); Hans v. Louisiana, 134 U. S. 1, 15 (1890). The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. See Kimel, supra, at 73.

We have recognized, however, that Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and "act[s] pursuant to a valid grant of constitutional authority." 528 U. S., at 73. The *364 first of these requirements is not in dispute here. See 42 U. S. C. § 12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter"). The question, then, is whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA.

Congress may not, of course, base its abrogation of the States' Eleventh Amendment immunity upon the powers enumerated in Article I. See Kimel, supra,at 79 ("Under our firmly established precedent then, if the [Age Discrimination in Employment Act of 1967] rests solely on Congress' Article I commerce power, the private petitioners in today's cases cannot maintain their suits against their state employers"); Seminole Tribe, supra, at 72-73 ("The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction"); College Savings Bank, supra, at 672; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 636 (1999); Alden v. Maine, 527 U. S. 706, 730-733 (1999). In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), however, we held that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." Id., at 456 (citation omitted). As a result, we concluded, Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power. See ibid. Our cases have adhered to this proposition. See, e. g., Kimel, supra, at 80. Accordingly, the ADA can apply to the States only to the extent that the statute is appropriate § 5 legislation.3

*365 Section 1 of the Fourteenth Amendment provides, in relevant part:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in § 1 by enacting "appropriate legislation." See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence. "Rather, Congress' power `to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, supra, at 81; City of Boerne, supra, at 536.

City of Boerne also confirmed, however, the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees. 521 U. S., at 519-524. Accordingly, § 5 legislation reaching beyond the scope of § 1's actual guarantees must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 520.

II

The first step in applying these now familiar principles is to identify with some precision the scope of the constitutional right at issue. Here, that inquiry requires us to examine the limitations § 1 of the Fourteenth Amendment places upon States' treatment of the disabled. As we did last Term in Kimel, see 528 U. S., at 83, we look to our prior decisions under the Equal Protection Clause dealing with this issue.

*366 In Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), we considered an equal protection challenge to a city ordinance requiring a special use permit for the operation of a group home for the mentally retarded. The specific question before us was whether the Court of Appeals had erred by holding that mental retardation qualified as a "quasi-suspect" classification under our equal protection jurisprudence. Id., at 435. We answered that question in the affirmative, concluding instead that such legislation incurs only the minimum "rational-basis" review applicable to general social and economic legislation.4 Id., at 446. In a statement that today seems quite prescient, we explained that

"if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so." Id., at 445-446.

Under rational-basis review, where a group possesses "distinguishing characteristics relevant to interests the State has the authority to implement," a State's decision *367 to act on the basis of those differences does not give rise to a constitutional violation. Id., at 441. "Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe, 509 U. S. 312, 320 (1993) (citing Nordlinger v. Hahn, 505 U. S. 1 (1992); New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam) ). Moreover, the State need not articulate its reasoning at the moment a particular decision is made. Rather, the burden is upon the challenging party to negative "`any reasonably conceivable state of facts that could provide a rational basis for the classification.' " Heller, supra, at 320 (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993)).

Justice Breyer suggests that Cleburne stands for the broad proposition that state decisionmaking reflecting "negative attitudes" or "fear" necessarily runs afoul of the Fourteenth Amendment. See post, at 382 (dissenting opinion) (quoting Cleburne,473 U. S., at 448). Although such biases may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make. As we noted in Cleburne: "[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently . . . ." Id., at 448 (emphases added). This language, read in context, simply states the unremarkable and widely acknowledged tenet of this Court's equal protection jurisprudence that state action subject to rational-basis scrutiny does not violate the Fourteenth Amendment when it "rationally furthers the purpose identified by the State." Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314 (1976) (per curiam).

Thus, the result of Cleburne is that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational. They could quite hardheadedly— *368and perhaps hardheartedly—hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.5

III

Once we have determined the metes and bounds of the constitutional right in question, we examine whether Congress identified a history and pattern of unconstitutional employment discrimination by the States against the disabled. Just as § 1 of the Fourteenth Amendment applies only to actions committed "under color of state law," Congress' § 5 authority is appropriately exercised only in response to state transgressions. See Florida Prepaid, 527 U. S., at 640 ("It is this conduct then—unremedied patent infringement by the States—that must give rise to the Fourteenth Amendment violation that Congress sought to redress in the Patent Remedy Act"); Kimel, 528 U. S., at 89 ("Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation"). The legislative record of the ADA, however, simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.

Respondents contend that the inquiry as to unconstitutional discrimination should extend not only to States themselves, but to units of local governments, such as cities and counties. All of these, they say, are "state actors" for *369 purposes of the Fourteenth Amendment. Brief for Respondents 8. This is quite true, but the Eleventh Amendment does not extend its immunity to units of local government. See Lincoln County v. Luning, 133 U. S. 529, 530 (1890). These entities are subject to private claims for damages under the ADA without Congress' ever having to rely on § 5 of the Fourteenth Amendment to render them so. It would make no sense to consider constitutional violations on their part, as well as by the States themselves, when only the States are the beneficiaries of the Eleventh Amendment.

Congress made a general finding in the ADA that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U. S. C. § 12101(a)(2). The record assembled by Congress includes many instances to support such a finding. But the great majority of these incidents do not deal with the activities of States.

Respondents in their brief cite half a dozen examples from the record that did involve States. A department head at the University of North Carolina refused to hire an applicant for the position of health administrator because he was blind; similarly, a student at a state university in South Dakota was denied an opportunity to practice teach because the dean at that time was convinced that blind people could not teach in public schools. A microfilmer at the Kansas Department of Transportation was fired because he had epilepsy; deaf workers at the University of Oklahoma were paid a lower salary than those who could hear. The Indiana State Personnel Office informed a woman with a concealed disability that she should not disclose it if she wished to obtain employment.6

*370 Several of these incidents undoubtedly evidence an unwillingness on the part of state officials to make the sort of accommodations for the disabled required by the ADA. Whether they were irrational under our decision in Cleburne is more debatable, particularly when the incident is described out of context. But even if it were to be determined that each incident upon fuller examination showed unconstitutional action on the part of the State, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based. See Kimel, supra, at 89-91; City of Boerne, 521 U. S., at 530-531. Congress, in enacting the ADA, found that "some 43,000,000 Americans have one or more physical or mental disabilities." 42 U. S. C. § 12101(a)(1). In 1990, the States alone employed more than 4.5 million people. U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 338 (119th ed. 1999) (Table 534). It is telling, we think, that given these large numbers, Congress assembled only such minimal evidence of unconstitutional state discrimination in employment against the disabled.

Justice Breyer maintains that Congress applied Title I of the ADA to the States in response to a host of incidents representing unconstitutional state discrimination in employment against persons with disabilities. A close review of the relevant materials, however, undercuts that conclusion. Justice Breyer's Appendix C consists not of legislative findings, but of unexamined, anecdotal accounts of "adverse, disparate treatment by state officials." Post, at 379. Of course, as we have already explained, "adverse, disparate treatment" often does not amount to a constitutional violation where rational-basis scrutiny applies. These accounts, moreover, were submitted not directly to Congress but to the Task Force on the Rights and Empowerment of *371 Americans with Disabilities, which made no findings on the subject of state discrimination in employment.7 See the Task Force's Report entitled From ADA to Empowerment (Oct. 12, 1990). And, had Congress truly understood this information as reflecting a pattern of unconstitutional behavior by the States, one would expect some mention of that conclusion in the Act's legislative findings. There is none. See 42 U. S. C. § 12101. Although Justice Breyer would infer from Congress' general conclusions regarding societal discrimination against the disabled that the States had likewise participated in such action, post, at 378, the House and Senate committee reports on the ADA flatly contradict this assertion. After describing the evidence presented to the Senate Committee on Labor and Human Resources and its subcommittee (including the Task Force Report upon which the dissent relies), the Committee's Report reached, among others, the following conclusion: "Discrimination still persists in such critical areas as employment in the private sector, public accommodations, public services, transportation, and telecommunications." S. Rep. No. 101-116, p. 6 (1989) (emphasis added). The House Committee on Education and Labor, addressing the ADA's employment provisions, reached the same conclusion: "[A]fter extensive review and analysis over a number of Congressional sessions, . . . there exists a compelling need to establish a clear and comprehensive Federal prohibition of discrimination on the basis of disability in the areas of employment in the private sector, public accommodations, public services, transportation, *372 and telecommunications." H. R. Rep. No. 101-485, pt. 2, p. 28 (1990) (emphasis added). Thus, not only is the inference Justice Breyer draws unwarranted, but there is also strong evidence that Congress' failure to mention States in its legislative findings addressing discrimination in employment reflects that body's judgment that no pattern of unconstitutional state action had been documented.

Even were it possible to squeeze out of these examples a pattern of unconstitutional discrimination by the States, the rights and remedies created by the ADA against the States would raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne, supra. For example, whereas it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to "mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities." 42 U. S. C. §§ 12112(5)(B), 12111(9). The ADA does except employers from the "reasonable accommodatio[n]" requirement where the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." § 12112(b)(5)(A). However, even with this exception, the accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternative responses that would be reasonable but would fall short of imposing an "undue burden" upon the employer. The Act also makes it the employer's duty to prove that it would suffer such a burden, instead of requiring (as the Constitution does) that the complaining party negate reasonable bases for the employer's decision. See ibid.

The ADA also forbids "utilizing standards, criteria, or methods of administration" that disparately impact the disabled, without regard to whether such conduct has a rational basis. § 12112(b)(3)(A). Although disparate impact may be *373 relevant evidence of racial discrimination, see Washington v. Davis, 426 U. S. 229, 239 (1976), such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny. See, e. g., ibid. ("[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact").

The ADA's constitutional shortcomings are apparent when the Act is compared to Congress' efforts in the Voting Rights Act of 1965 to respond to a serious pattern of constitutional violations. In South Carolina v. Katzenbach, 383 U. S. 301 (1966),we considered whether the Voting Rights Act was "appropriate" legislation to enforce the Fifteenth Amendment's protection against racial discrimination in voting. Concluding that it was a valid exercise of Congress' enforcement power under § 2 of the Fifteenth Amendment,8 we noted that "[b]efore enacting the measure, Congress explored with great care the problem of racial discrimination in voting." Id., at 308.

In that Act, Congress documented a marked pattern of unconstitutional action by the States. State officials, Congress found, routinely applied voting tests in order to exclude African-American citizens from registering to vote. See id., at 312. Congress also determined that litigation had proved ineffective and that there persisted an otherwise inexplicable 50-percentage-point gap in the registration of white and African-American voters in some States. See id., at 313. Congress' response was to promulgate in the Voting Rights Act a detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States' systematic denial of those rights was identified.

*374 The contrast between this kind of evidence, and the evidence that Congress considered in the present case, is stark. Congressional enactment of the ADA represents its judgment that there should be a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U. S. C. § 12101(b)(1). Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here, and to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne.9 Section 5 does not so broadly enlarge congressional authority. The judgment of the Court of Appeals is therefore

Reversed.

1

 Respondents' complaints in the United States District Court alleged violations of both Title I and Title II of the ADA, and petitioners' "Question Presented" can be read to apply to both sections. See Brief for Petitioners i; Brief for United States I. Though the briefs of the parties discuss both sections in their constitutional arguments, no party has briefed the question whether Title II of the ADA, dealing with the "services, programs, or activities of a public entity," 42 U. S. C. § 12132, is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject. See, e. g., Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal quotation marks omitted)). The Courts of Appeals are divided on this issue, compare Zimmerman v. Oregon Dept. of Justice, 170 F. 3d 1169 (CA9 1999), with Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F. 3d 816 (CA11 1998). We are not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under § 5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question. To the extent the Court granted certiorari on the question whether respondents may sue their state employers for damages under Title II of the ADA, see this Court's Rule 24.1(a), that portion of the writ is dismissed as improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959).

2

 Garrett raised other claims, but those are not presently before the Court.

3

 It is clear that Congress intended to invoke § 5 as one of its bases for enacting the ADA. See 42 U. S. C. § 12101(b)(4).

4

 Applying the basic principles of rationality review, Cleburne struck down the city ordinance in question. 473 U. S., at 447-450. The Court's reasoning was that the city's purported justifications for the ordinance made no sense in light of how the city treated other groups similarly situated in relevant respects. Although the group home for the mentally retarded was required to obtain a special use permit, apartment houses, other multiple-family dwellings, retirement homes, nursing homes, sanitariums, hospitals, boarding houses, fraternity and sorority houses, and dormitories were not subject to the ordinance. See ibid.

5

 It is worth noting that by the time that Congress enacted the ADA in 1990, every State in the Union had enacted such measures. At least one Member of Congress remarked that "this is probably one of the few times where the States are so far out in front of the Federal Government, it's not funny." Hearing on Discrimination Against Cancer Victims and the Handicapped before the Subcommittee on Employment Opportunities of the House Committee on Education and Labor, 100th Cong., 1st Sess., 5 (1987). A number of these provisions, however, did not go as far as the ADA did in requiring accommodation.

6

 The record does show that some States, adopting the tenets of the eugenics movement of the early part of this century, required extreme measures such as sterilization of persons suffering from hereditary mental disease. These laws were upheld against constitutional attack 70 years ago in Buck v. Bell, 274 U. S. 200 (1927). But there is no indication that any State had persisted in requiring such harsh measures as of 1990 when the ADA was adopted.

7

 Only a small fraction of the anecdotes Justice Breyer identifies in his Appendix C relate to state discrimination against the disabled in employment. At most, somewhere around 50 of these allegations describe conduct that could conceivably amount to constitutional violations by the States, and most of them are so general and brief that no firm conclusion can be drawn. The overwhelming majority of these accounts pertain to alleged discrimination by the States in the provision of public services and public accommodations, which areas are addressed in Titles II and III of the ADA.

8

 Section 2 of the Fifteenth Amendment is virtually identical to § 5 of the Fourteenth Amendment.

9

 Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U. S. 123 (1908). In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress. See n. 5, supra.

Justice Kennedy, with whom Justice O'Connor joins, concurring.

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Quite apart from any historical documentation, *375 knowledge of our own human instincts teaches that persons who find it difficult to perform routine functions by reason of some mental or physical impairment might at first seem unsettling to us, unless we are guided by the better angels of our nature. There can be little doubt, then, that persons with mental or physical impairments are confronted with prejudice which can stem from indifference or insecurity as well as from malicious ill will.

One of the undoubted achievements of statutes designed to assist those with impairments is that citizens have an incentive, flowing from a legal duty, to develop a better understanding, a more decent perspective, for accepting persons with impairments or disabilities into the larger society. The law works this way because the law can be a teacher. So I do not doubt that the Americans with Disabilities Act of 1990 will be a milestone on the path to a more decent, tolerant, progressive society.

It is a question of quite a different order, however, to say that the States in their official capacities, the States as governmental entities, must be held in violation of the Constitution on the assumption that they embody the misconceived or malicious perceptions of some of their citizens. It is a most serious charge to say a State has engaged in a pattern or practice designed to deny its citizens the equal protection of the laws, particularly where the accusation is based not on hostility but instead on the failure to act or the omission to remedy. States can, and do, stand apart from the citizenry. States act as neutral entities, ready to take instruction and to enact laws when their citizens so demand. The failure of a State to revise policies now seen as incorrect under a new understanding of proper policy does not always constitute the purposeful and intentional action required to make out a violation of the Equal Protection Clause. See Washington v. Davis, 426 U. S. 229 (1976).

For the reasons explained by the Court, an equal protection violation has not been shown with respect to the several States in this case. If the States had been transgressing *376 the Fourteenth Amendment by their mistreatment or lack of concern for those with impairments, one would have expected to find in decisions of the courts of the States and also the courts of the United States extensive litigation and discussion of the constitutional violations. This confirming judicial documentation does not exist. That there is a new awareness, a new consciousness, a new commitment to better treatment of those disadvantaged by mental or physical impairments does not establish that an absence of state statutory correctives was a constitutional violation.

It must be noted, moreover, that what is in question is not whether the Congress, acting pursuant to a power granted to it by the Constitution, can compel the States to act. What is involved is only the question whether the States can be subjected to liability in suits brought not by the Federal Government (to which the States have consented, see Alden v. Maine, 527 U. S. 706, 755 (1999)), but by private persons seeking to collect moneys from the state treasury without the consent of the State. The predicate for money damages against an unconsenting State in suits brought by private persons must be a federal statute enacted upon the documentation of patterns of constitutional violations committed by the State in its official capacity. That predicate, for reasons discussed here and in the decision of the Court, has not been established. With these observations, I join the Court's opinion.

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

Reviewing the congressional record as if it were an administrative agency record, the Court holds the statutory provision before us, 42 U. S. C. § 12202, unconstitutional. The Court concludes that Congress assembled insufficient evidence of unconstitutional discrimination, ante, at 370, that Congress improperly attempted to "rewrite" the law we established in Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), ante, at 374, and that the law is not sufficiently *377 tailored to address unconstitutional discrimination, ante, at 372-373.

Section 5, however, grants Congress the "power to enforce, by appropriate legislation," the Fourteenth Amendment's equal protection guarantee. U. S. Const., Amdt. 14, § 5. As the Court recognizes, state discrimination in employment against persons with disabilities might "`run afoul of the Equal Protection Clause' " where there is no "`rational relationship between the disparity of treatment and some legitimate governmental purpose.' " Ante, at 367 (quoting Heller v. Doe, 509 U. S. 312, 320 (1993)). See also Cleburne v. Cleburne Living Center, Inc., supra, at 440(stating that the Court will sustain a classification if it is "rationally related to a legitimate state interest"). In my view, Congress reasonably could have concluded that the remedy before us constitutes an "appropriate" way to enforce this basic equal protection requirement. And that is all the Constitution requires.

I

The Court says that its primary problem with this statutory provision is one of legislative evidence. It says that "Congress assembled only . . . minimal evidence of unconstitutional state discrimination in employment." Ante, at 370. In fact, Congress compiled a vast legislative record documenting "`massive, society-wide discrimination' " against persons with disabilities. S. Rep. No. 101-116, pp. 8-9 (1989) (quoting testimony of Justin Dart, chairperson of the Task Force on the Rights and Empowerment of Americans with Disabilities). In addition to the information presented at 13 congressional hearings (see Appendix A, infra ), and its own prior experience gathered over 40 years during which it contemplated and enacted considerable similar legislation (see Appendix B, infra ), Congress created a special task force to assess the need for comprehensive legislation. That task force held hearings in every State, attended by more than 30,000 people, including thousands who had experienced discrimination first hand. See From ADA to Empowerment, *378 Task Force on the Rights and Empowerment of Americans with Disabilities 16 (Oct. 12, 1990) (hereinafter Task Force Report). The task force hearings, Congress' own hearings, and an analysis of "census data, national polls, and other studies" led Congress to conclude that "people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally." 42 U. S. C. § 12101(a)(6). As to employment, Congress found that "[t]wo-thirds of all disabled Americans between the age of 16 and 64 [were] not working at all," even though a large majority wanted to, and were able to, work productively. S. Rep. No. 101-116, at 9. And Congress found that this discrimination flowed in significant part from "stereotypic assumptions" as well as "purposeful unequal treatment." 42 U. S. C. § 12101(a)(7).

The powerful evidence of discriminatory treatment throughout society in general, including discrimination by private persons and local governments, implicates state governments as well, for state agencies form part of that same larger society. There is no particular reason to believe that they are immune from the "stereotypic assumptions" and pattern of "purposeful unequal treatment" that Congress found prevalent. The Court claims that it "make[s] no sense" to take into consideration constitutional violations committed by local governments. Ante, at 369. But the substantive obligation that the Equal Protection Clause creates applies to state and local governmental entities alike. E. g., Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). Local governments often work closely with, and under the supervision of, state officials, and in general, state and local government employers are similarly situated. Nor is determining whether an apparently "local" entity is entitled to Eleventh Amendment immunity as simple as the majority suggests—it often requires a "`detailed examination of the relevant provisions of [state] law.' " Regents of Univ. of Cal. *379 v. Doe, 519 U. S. 425, 430, n. 6 (1997)(quoting Moor v. County of Alameda, 411 U. S. 693, 719-721 (1973)).

In any event, there is no need to rest solely upon evidence of discrimination by local governments or general societal discrimination. There are roughly 300 examples of discrimination by state governments themselves in the legislative record. See, e. g., Appendix C, infra. I fail to see how this evidence "fall[s] far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based." Ante, at 370.

The congressionally appointed task force collected numerous specific examples, provided by persons with disabilities themselves, of adverse, disparate treatment by state officials. They reveal, not what the Court describes as "half a dozen" instances of discrimination, ante, at 369, but hundreds of instances of adverse treatment at the hands of state officials— instances in which a person with a disability found it impossible to obtain a state job, to retain state employment, to use the public transportation that was readily available to others in order to get to work, or to obtain a public education, which is often a prerequisite to obtaining employment. State-imposed barriers also frequently made it difficult or impossible for people to vote, to enter a public building, to access important government services, such as calling for emergency assistance, and to find a place to live due to a pattern of irrational zoning decisions similar to the discrimination that we held unconstitutional in Cleburne, 473 U. S., at 448. See Appendix C, infra.

As the Court notes, those who presented instances of discrimination rarely provided additional, independent evidence sufficient to prove in court that, in each instance, the discrimination they suffered lacked justification from a judicial standpoint. Ante, at 370 (stating that instances of discrimination are "described out of context"). Perhaps this explains the Court's view that there is "minimal evidence of unconstitutional state discrimination." Ibid. But a legislature *380 is not a court of law. And Congress, unlike courts, must, and does, routinely draw general conclusions—for example, of likely motive or of likely relationship to legitimate need—from anecdotal and opinion-based evidence of this kind, particularly when the evidence lacks strong refutation. See Task Force Report 16, 20 (task force "met many times with significant representatives of groups opposed to [the] ADA," and as to the general public, although the task force received "about 2,000 letters" in support of the ADA, there was only "one letter in opposition"); S. Rep. No. 101-116, at 10 (summarizing testimony that many reasonable accommodations cost "less than $50," and the expense of others, such as hiring employees who can interpret for the deaf, is "frequently exaggerated"). In reviewing § 5 legislation, we have never required the sort of extensive investigation of each piece of evidence that the Court appears to contemplate. Compare ante, at 370-371, with Katzenbach v. Morgan, 384 U. S. 641, 652-656 (1966) (asking whether Congress' likely conclusions were reasonable, not whether there was adequate evidentiary support in the record). Nor has the Court traditionally required Congress to make findings as to state discrimination, or to break down the record evidence, category by category. Compare ante, at 371-372 (noting statements in two congressional Reports that mentioned state discrimination in public services and transportation but not in employment), with Morgan, supra, at 654 (considering what Congress "might" have concluded); 384 U. S., at 652 (holding that likely discrimination against Puerto Ricans in areas other than voting supported statute abolishing literacy test as qualification for voting).

Regardless, Congress expressly found substantial unjustified discrimination against persons with disabilities. 42 U. S. C. § 12101(9) (finding a pattern of "unnecessary discrimination and prejudice" that "costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity" (emphasis added)). See also 2 Legislative History of the Americans with Disabilities *381 Act (Leg. Hist.) (Committee Print compiled for the House Committee on Education and Labor), Ser. No. 102—B, p. 1620 (1990) (testimony of Arlene B. Mayerson) (describing "unjustifiable and discriminatory loss of job opportunities"); id., at 1623 (citing study showing "`strong evidence that employers' fears of low performance among disabled workers are unjustified' "). Moreover, it found that such discrimination typically reflects "stereotypic assumptions" or "purposeful unequal treatment." 42 U. S. C. § 12101(7). See also 2 Leg. Hist. 1622 (testimony of Arlene B. Mayerson) ("Outmoded stereotypes whether manifested in medical or other job `requirements' that are unrelated to the successful performance of the job, or in decisions based on the generalized perceptions of supervisors and hiring personnel, have excluded many disabled people from jobs for which they are qualified"). In making these findings, Congress followed our decision in Cleburne, which established that not only discrimination against persons with disabilities that rests upon "`a bare . . . desire to harm a politically unpopular group,' " 473 U. S., at 447 (quoting Department of Agriculture v. Moreno,413 U. S. 528, 534 (1973) (omission in Cleburne )), violates the Fourteenth Amendment, but also discrimination that rests solely upon "negative attitude[s]," "fea[r]," 473 U. S., at 448, or "irrational prejudice," id., at 450. Adverse treatment that rests upon such motives is unjustified discrimination in Cleburne' s terms.

The evidence in the legislative record bears out Congress' finding that the adverse treatment of persons with disabilities was often arbitrary or invidious in this sense, and thus unjustified. For example, one study that was before Congress revealed that "most . . . governmental agencies in [one State] discriminated in hiring against job applicants for an average period of five years after treatment for cancer," based in part on coworkers' misguided belief that "cancer is contagious." 2 Leg. Hist. 1619-1620 (testimony of Arlene B. Mayerson). A school inexplicably refused to exempt a deaf teacher, who taught at a school for the deaf, from a *382 "listening skills" requirement. Government's Lodging 1503. A State refused to hire a blind employee as director of an agency for the blind—even though he was the most qualified applicant. Id., at 974. Certain state agencies apparently had general policies against hiring or promoting persons with disabilities. Id., at 1159, 1577. A zoo turned away children with Downs Syndrome "because [the zookeeper] feared they would upset the chimpanzees." S. Rep. No. 101— 116, at 7. There were reports of numerous zoning decisions based upon "negative attitudes" or "fear," Cleburne, supra, at 448, such as a zoning board that denied a permit for an obviously pretextual reason after hearing arguments that a facility would house "`deviants' " who needed "`room to roam,' " Government's Lodging 1068. A complete listing of the hundreds of examples of discrimination by state and local governments that were submitted to the task force is set forth in Appendix C, infra.Congress could have reasonably believed that these examples represented signs of a widespread problem of unconstitutional discrimination.

II

The Court's failure to find sufficient evidentiary support may well rest upon its decision to hold Congress to a strict, judicially created evidentiary standard, particularly in respect to lack of justification. Justice Kennedy's empirical conclusion—which rejects that of Congress—rests heavily upon his failure to find "extensive litigation and discussion of the constitutional violations," in "the courts of the United States." Ante, at 376 (concurring opinion) (emphasis added). And the Court itself points out that, when economic or social legislation is challenged in court as irrational, hence unconstitutional, the "burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification." Ante, at 367 (internal quotation marks omitted). Or as Justice Brandeis, writing for the Court, put the matter many years ago, "`if any state of facts reasonably can be conceived that *383 would sustain' " challenged legislation, then "`there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing . . . that the action is arbitrary.' " Pacific States Box & Basket Co. v. White, 296 U. S. 176, 185 (1935) (quoting Borden's Farm Products Co. v. Baldwin, 293 U. S. 194, 209 (1934)). Imposing this special "burden" upon Congress, the Court fails to find in the legislative record sufficient indication that Congress has "negative[d]" the presumption that state action is rationally related to a legitimate objective. Ante, at 367.

The problem with the Court's approach is that neither the "burden of proof" that favors States nor any other rule of restraint applicable to judges applies to Congress when it exercises its § 5 power. "Limitations stemming from the nature of the judicial process . . . have no application to Congress." Oregon v. Mitchell, 400 U. S. 112, 248 (1970) (Brennan, White, and Marshall, JJ., concurring in part and dissenting in part). Rational-basis review—with its presumptions favoring constitutionality—is "a paradigm of judicial restraint." FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) (emphasis added). And the Congress of the United States is not a lower court.

Indeed, the Court in Cleburne drew this very institutional distinction. We emphasized that "courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices." 473 U. S., at 441. Our invocation of judicial deference and respect for Congress was based on the fact that "[§ ]5 of the [Fourteenth] Amendment empowers Congress to enforce [the equal protection] mandate." Id.,at 439 (emphasis added). Indeed, we made clear that the absence of a contrary congressional finding was critical to our decision to apply mere rational-basis review to disability discrimination claims—a "congressional direction" to apply a more stringent standard would have been "controlling." Ibid. See also Washingtonv. Davis, 426 U. S. 229, 248 *384 (1976) (refusing to invalidate a law based on the Equal Protection Clause because a disparate-impact standard "should await legislative prescription"). Cf. Mitchell, supra, at 284 (Stewart, J., concurring in part and dissenting in part) ("Congress may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records"). In short, the Court's claim that "to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne, " ante, at 374, is repudiated by Cleburne itself.

There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its § 5 authority, to adopt rules or presumptions that reflect a court's institutional limitations. Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. Cf. Cleburne, supra, at 442-443 (addressing the problems of the "large and diversified group" of persons with disabilities "is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary"). Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have firsthand experience with discrimination and related issues.

Moreover, unlike judges, Members of Congress are elected. When the Court has applied the majority's burden of proof rule, it has explained that we, i. e., the courts, do not "`sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.' " Heller, 509 U. S., at 319 *385 (quoting New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam) ). To apply a rule designed to restrict courts as if it restricted Congress' legislative power is to stand the underlying principle—a principle of judicial restraint— on its head. But without the use of this burden of proof rule or some other unusually stringent standard of review, it is difficult to see how the Court can find the legislative record here inadequate. Read with a reasonably favorable eye, the record indicates that state governments subjected those with disabilities to seriously adverse, disparate treatment. And Congress could have found, in a significant number of instances, that this treatment violated the substantive principles of justification—shorn of their judicial restraint-related presumptions—that this Court recognized in Cleburne.

III

The Court argues in the alternative that the statute's damages remedy is not "congruent" with and "proportional" to the equal protection problem that Congress found. Ante, at 374 (citing City of Boerne v. Flores, 521 U. S. 507, 520 (1997)). The Court suggests that the Act's "reasonable accommodation" requirement, 42 U. S. C. § 12112(b)(5)(A), and disparate-impact standard, § 12112(b)(3)(A), "far excee[d] what is constitutionally required." Ante, at 372. But we have upheld disparate-impact standards in contexts where they were not "constitutionally required." Compare Griggs v. Duke Power Co., 401 U. S. 424, 432 (1971), with Washington, supra, at 239, and City of Rome v. United States, 446 U. S. 156, 172-173 (1980), with Mobile v. Bolden, 446 U. S. 55, 62 (1980) (plurality opinion).

And what is wrong with a remedy that, in response to unreasonable employer behavior, requires an employer to make accommodations that are reasonable? Of course, what is "reasonable" in the statutory sense and what is "unreasonable" in the constitutional sense might differ. In other words, the requirement may exceed what is necessary to *386 avoid a constitutional violation. But it is just that power— the power to require more than the minimum—that § 5 grants to Congress, as this Court has repeatedly confirmed. As long ago as 1880, the Court wrote that § 5 "brought within the domain of congressional power" whatever "tends to enforce submission" to its "prohibitions" and "to secure to all persons . . . the equal protection of the laws." Ex parte Virginia, 100 U. S. 339, 346 (1880). More recently, the Court added that § 5's "draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18." Morgan, 384 U. S., at 650 (citing McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)).

In keeping with these principles, the Court has said that "[i]t is not for us to review the congressional resolution of . . . the various conflicting considerations—the risk or pervasiveness of the discrimination in governmental services . . . , the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected." 384 U. S., at 653. "It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did." Ibid.See also South Carolina v. Katzenbach, 383 U. S. 301, 324 (1966) (interpreting the similarly worded Enforcement Clause of the Fifteenth Amendment to permit Congress to use "any rational means to effectuate the constitutional prohibition"). Nothing in the words "reasonable accommodation" suggests that the requirement has no "tend[ency] to enforce" the Equal Protection Clause, Ex parte Virginia, supra, at 346, that it is an irrational way to achieve the objective, Katzenbach, supra, at 324, that it would fall outside the scope of the Necessary and Proper Clause, Morgan, supra, at 650, or that it somehow otherwise exceeds the bounds of the "appropriate," U. S. Const., Amdt. 14, § 5.

The Court's more recent cases have professed to follow the longstanding principle of deference to Congress. See Kimel *387 v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000) ("Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment." Rather, Congress can prohibit a "somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text"); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999) ("`Congress must have wide latitude' ") (quoting City of Boerne, supra, at 519-520); City of Boerne, supra, at 528 (reaffirming Morgan ); 521 U. S., at 536 (Congress' "conclusions are entitled to much deference"). And even today, the Court purports to apply, not to depart from, these standards. Ante, at 365. But the Court's analysis and ultimate conclusion deprive its declarations of practical significance. The Court `sounds the word of promise to the ear but breaks it to the hope.'

IV

The Court's harsh review of Congress' use of its § 5 power is reminiscent of the similar (now-discredited) limitation that it once imposed upon Congress' Commerce Clause power. Compare Carter v. Carter Coal Co., 298 U. S. 238 (1936), with United States v. Darby, 312 U. S. 100, 123 (1941) (rejecting Carter Coal' s rationale). I could understand the legal basis for such review were we judging a statute that discriminated against those of a particular race or gender, see United States v. Virginia, 518 U. S. 515 (1996), or a statute that threatened a basic constitutionally protected liberty such as free speech, see Reno v. American Civil Liberties Union, 521 U. S. 844 (1997); see also Post & Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel,110 Yale L. J. 441, 477 (2000) (stating that the Court's recent review of § 5 legislation appears to approach strict scrutiny); 1 L. Tribe, American Constitutional Law § 5-16, p. 959 (3d ed. 2000) (same). The legislation before us, however, does not discriminate against anyone, nor does it pose any threat to basic liberty. And it is difficult *388 to understand why the Court, which applies "minimum `rational-basis' review" to statutes that burden persons with disabilities, ante, at 366, subjects to far stricter scrutiny a statute that seeks to help those same individuals.

I recognize nonetheless that this statute imposes a burden upon States in that it removes their Eleventh Amendment protection from suit, thereby subjecting them to potential monetary liability. Rules for interpreting § 5 that would provide States with special protection, however, run counter to the very object of the Fourteenth Amendment. By its terms, that Amendment prohibits States from denying their citizens equal protection of the laws. U. S. Const., Amdt. 14, § 1. Hence "principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments `by appropriate legislation.' Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty." City of Rome,446 U. S., at 179. See also Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976); Ex parte Virginia, supra, at 345. And, ironically, the greater the obstacle the Eleventh Amendment poses to the creation by Congress of the kind of remedy at issue here—the decentralized remedy of private damages actions—the more Congress, seeking to cure important national problems, such as the problem of disability discrimination before us, will have to rely on more uniform remedies, such as federal standards and court injunctions, 42 U. S. C. § 12188(a)(2), which are sometimes draconian and typically more intrusive. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 704-705 (1999) (Breyer, J., dissenting). Cf. ante, at 374, n. 9. For these reasons, I doubt that today's decision serves any constitutionally based federalism interest.

The Court, through its evidentiary demands, its nondeferential review, and its failure to distinguish between judicial and legislative constitutional competencies, improperly invades a power that the Constitution assigns to Congress. *389Morgan, 384 U. S., at 648, n. 7 (The "sponsors and supporters of the [Fourteenth] Amendment were primarily interested in augmenting the power of Congress"). Its decision saps § 5 of independent force, effectively "confin[ing] the legislative power . . . to the insignificant role of abrogating only those state laws that the judicial branch [is] prepared to adjudge unconstitutional." Id., at 648-649. Whether the Commerce Clause does or does not enable Congress to enact this provision, see, e. g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100-185 (1996) (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting); College Savings Bank, supra, at 699-700 (Breyer, J., dissenting), in my view, § 5 gives Congress the necessary authority.

For the reasons stated, I respectfully dissent.

APPENDIX A TO OPINION OF BREYER, J.

Congressional hearings on the Americans with Disabilities Act

Americans with Disabilities Act of 1989: Hearings on H. R. 2273 before the House Committee on the Judiciary and the Subcommittee on Civil and Constitutional Rights, 101st Cong., 1st Sess. (1989).

Americans with Disabilities Act: Hearing on H. R. 2273 and S. 933 before the Subcommittee on Transportation and Hazardous Materials of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990). Americans with Disabilities Act: Hearings on H. R. 2273 before the Subcommittee on Surface Transportation of the House Committee on Public Works and Transportation, 101st Cong., 1st Sess. (1990).

Americans with Disabilities: Telecommunications Relay Services, Hearing on Title V of H. R. 2273 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990).

Americans with Disabilities Act of 1989: Hearing on H. R. 2273 before the Subcommittee on Select Education of the *390 House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).

Field Hearing on Americans with Disabilities Act: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).

Hearing on H. R. 2273, The Americans with Disabilities Act of 1989: Joint Hearing before the Subcommittee on Select Education and Employment Opportunities of the House Committee on Education and Labor, 101st Cong., 1st Sess. (July 18 & Sept. 13, 1989) (two hearings). Oversight Hearing on H. R. 4498, Americans with Disabilities Act of 1988: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989).

Americans with Disabilities Act: Hearing before the House Committee on Small Business, 101st Cong., 2d Sess. (1990); Americans with Disabilities Act of 1989: Hearings on S. 933 before the Senate Committee on Labor and Human Resources and the Subcommittee on the Handicapped, 101st Cong., 1st Sess. (1989) (May 1989 Hearings). Americans with Disabilities Act of 1988: Joint Hearing on S. 2345 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Human Resources and the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989).

APPENDIX B TO OPINION OF BREYER, J.

Disability discrimination laws enacted by Congress prior to the Americans with Disabilities Act

Act of June 10, 1948, ch. 434, 62 Stat. 351 Architectural Barriers Act of 1968, 42 U. S. C. § 4151 et seq. Rehabilitation Act of 1973, 29 U. S. C. § 701 et seq. *391Education of the Handicapped Act, Pub. L. 91-230, Title VI, 84 Stat. 175 (reenacted in 1990 as the Individuals with Disabilities Education Act, 20 U. S. C. § 1400 et seq. ) Developmental Disabilities Assistance and Bill of Rights Act, 42 U. S. C. § 6000 et seq. Voting Accessibility for the Elderly and Handicapped Act, 42 U. S. C. § 1973ee et seq. Air Carrier Access Act of 1986, 49 U. S. C. § 41705 Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U. S. C. § 10801 et seq. Fair Housing Amendments Act of 1988, 42 U. S. C. § 3604.

APPENDIX C TO OPINION OF BREYER, J.

Submissions made by individuals to the Task Force on Rights and Empowerment of Americans with Disabilities. See the Government's Lodging (available in Clerk of Court's case file).

ALABAMA

Page No.

00002    discrimination against the mentally ill in city zoning
         process

00003    inaccessible exercise equipment at University   of
         Alabama

00004    school failed to train teachers how to work with
         students with learning disabilities

00005    courts failed to provide interpretive services for
         deaf people

00006    lack of accessible police and court services for deaf
         people

00007    inaccessible public transportation

00008    child denied public education because of cerebral
         palsy

00009    inaccessible public transportation, which prevented
         persons with disabilities from getting to work

00010    inaccessible public buildings and services; 
inaccessible transportation
00011    inaccessible public schools; inaccessible public transportation
00013    inaccessible public schools; inaccessible public transportation
00014    failure to enforce building codes requiring access for          
persons with disabilities
00015    inaccessible courthouse
00017    lack of instructions for use of voting machine by          
blind people; inaccessible restrooms in newly renovated State House
00021    inaccessible public transportation
00023    inaccessible public transportation
00024    failure to enforce state and local laws protecting persons with disabilities
00025    schools failed to provide an adequate education for          
children with disabilities
00026    inaccessible public transportation
00027    man denied vocational rehabilitation services based on          
his cerebral palsy; inaccessible public transportation
00031    vocational rehabilitation agency failed to provide          
services for schizophrenics; zoning discrimination against group homes
00032    school failed to provide an adequate education
00033    school failed to provide an adequate education
ALASKA
Page No.
00038    school placed child with cerebral palsy in special education classes
00041    inaccessible restrooms in state legislature information office
00042    inaccessible areas at new Alaska Performing Arts Center

00044    inaccessible public transportation, which prevented
         persons with disabilities from getting to work

00046    lack of curb cuts in sidewalks near apartment building
for persons with disabilities

00048    child erroneously placed in special education classes

00049    inaccessible new performing arts center

00050    Alaska Psychiatric Institute failed to provide interpretive
services for deaf patients

00052    state and local agencies disregarded laws requiring
         accessibility

00055    jail failed to provide person with disability medical
         treatment

00056    inaccessible government buildings in Seward

00057    inaccessible public transportation

00058    city failed to train employees how to communicate
         with people with hearing impairments

00059    segregated seating and inaccessibility at new performing
arts center

00061    inaccessibility of State Ferry Columbia and Alaska
         Railroad; denial of job interview because person was
         in a wheelchair

00062    inaccessible new performing arts center

00063    person using a respirator denied access to Alaska
         State Division of Medical Assistance

00065    inaccessible city hall

00067    school district retaliated against teacher for asking
         to be assigned to an accessible classroom

00069    inaccessible public transportation

00070    lack of curb cuts; inaccessible public transportation

00071    state agencies failed to provide interpretive services
         for deaf people

00072    department of motor vehicles failed to provide interpretive
services

00073    inaccessibility of Seward City Hall and other state
         and local buildings

00075    state university failed to assist in covering expense of 
interpretive services for deaf graduate student
00076    inaccessible public buildings
00077    inaccessible public school
ARIZONA
Page No.
00090    survey showing inaccessibility problems in city of          
Phoenix's public services
00110    inaccessible public transportation
00112    inaccessible restrooms at state recreation areas
00116    department of motor vehicles failed to provide visual          
signs or other assistance for people with hearing impairments
00117    person with disability denied police officer job
00119    Arizona Department of Economic Security took 3          
to 4 years to fix unsafe van lift
00121    county paratransit refused to provide transportation          
to college
00124    department of motor vehicles placed restrictions on          
driver's license because of deafness
00125    teacher with hearing impairment denied numerous          
jobs
00127    department of motor vehicles failed to assist deaf          
people
00129    inaccessible entrance, restroom, water fountain, and          
office at building leased by State
00130    woman injured trying to use inaccessible restroom at          
roadside rest stop; lack of curb cuts
00131    inaccessible social service agencies
ARKANSAS
Page No.
00136    public school failed to enforce accommodations for student

00138    public school teacher refused to allow student with
         disability to use authorized calculator

00139    state university failed to inform student with hearing
         impairment about activities and rules

00140    lack of curb cuts

00141    inaccessible public transportation

00143    inaccessible office area at public housing for persons
         with disabilities

00144    inaccessible public transportation

00145    inaccessible state office of human services; state
         agencies failed to hire persons with disabilities

00146    failure to enforce handicapped parking law

00147    school erroneously placed child with mobility impairment
in special education classes

00149    public schools failed to provide interpretive services
         for deaf people

00150    inaccessible public transportation

00153    person with disability forced to resign employment
         because of architectural barriers

00154    public school held meetings and conferences at inaccessible
locations

00155    physical barriers prevented citizens from voting

00156    rehabilitation services failed to assist people with all
         kinds of disabilities

00159    inaccessible city and county buildings

00161    human services office relocated to inaccessible
         building

00163    lack of curb cuts

CALIFORNIA

Page No.

00166    inaccessible public recreation sites

00168    California Relay System failed to provide telephone
         access to other States for deaf people

00180    public transit failed to provide visual signs for deaf          
people
00181    inaccessible public transportation
00202    California Childrens Services refused to help with         
 cost of caring for child with head injury at home
00206    inaccessible county buildings
00208    deaf people denied access to state agencies that          
lacked TDD's
00210    deaf people denied access to state agencies that          
lacked TDD's
00211    public transit failed to provide visual signs for deaf people
00212    public transit failed to provide visual signs for deaf people
00213    limited out-of-state telephone relay services
00214    inaccessible public transportation limited access to community college
00215    inaccessible public transportation
00218    deaf people denied access to state agencies that lacked TDD's
00219    state mental health services failed to provide access for deaf people
00220    government failed to provide interpretive services  for deaf people
00221    inaccessible public transportation; lack of curb cuts
00222    inaccessible public transportation
00223    inaccessible airport; inaccessible public transportation
00224    California Relay Service failed to enable deaf 
people to make interstate calls
00225    California Relay Service failed to enable deaf 
people to make interstate calls
00226    inaccessible public transportation; inaccessible 
restrooms in public buildings

00227    University of California attempted to terminate employees
with disabilities for taking medical leave

00231    state agencies failed to provide TDD's

00232    person denied opportunity to serve on jury because
         county failed to provide interpretive services for
         deaf people

00236    public school district failed to provide TTD for deaf
         parents

00237    California Relay Service failed to enable deaf people
         to make interstate calls

00240    lack of curb cuts; inaccessible public transportation

00241    inaccessible public transportation

00244    inaccessible public transportation

00245    California Civil Service Exam held at high school
         with inaccessible restrooms

00246    inaccessible restrooms in county administration
         building; lack of curb cuts

00247    inaccessible public transportation prevented persons
         with disabilities from getting to work; State failed to
         enforce laws requiring accessibility

00248    inaccessible public transportation

00249    California Relay Service failed to enable deaf people
         to make interstate calls

00250    inaccessible public transportation

00252    inaccessible public transportation

00253    inaccessible public transportation

00254    inaccessible county courthouse; street signals too fast
         for safe crossing by wheelchair

00255    public functions failed to provide interpretive services
for deaf people

00258    deaf people denied access to state agencies that
         lacked TDD's

00261    California Basic Educational Skills Test discriminated 
against deaf adults who wanted to become teachers of deaf students
00262    department of motor vehicles required doctors to report 
patients with seizure disorders and revoked such patients licenses, 
but did not require reporting of other conditions that could cause erratic driving
COLORADO
Page No.
00266    person in wheelchair passed by five bus drivers, all of 
whom claimed that lifts were broken
00267    lack of curb cuts and ramps; inaccessible public transportation
00268    inaccessible public transportation
00269    inaccessible public transportation
00270    persons with disabilities placed in segregated public housing
00271    inaccessible public transportation
00272    lack of curb cuts forced person in wheelchair to use street
00273    inaccessible county courthouse
00274    inaccessible public transportation
00275    inaccessible public transportation in small cities; public 
schools failed to assist students with disabilities
00276    inaccessible public transportation; inaccessible 
public facilities and recreation sites
00277    political parties held caucuses at inaccessible private home
00280    children with developmental disabilities required to attend 
segregated schools
00281    public school system refused to transfer student with          
disabilities from special to regular school until she brought suit

00283    vocational rehabilitation agency refused to take referrals
from psychiatric halfway house; person denied
drivers license in Virginia because of mental
         illness

CONNECTICUT

Page No.

00285    public school inaccessible to parent with disability

00289    state university denied renewal of contract for graduate
assistantship because of age and disability

DELAWARE

Page No.

00301    inaccessible public high school; inaccessible public
         transportation

00302    inaccessible public schools; inaccessible public
         transportation

00303    inaccessible voting machines; inadequate handicapped
parking

00308    man with physical disability spent 45 minutes crawling
into polling  place because it was inaccessible to
         wheelchairs

00310    inaccessible public transportation; public ceremony
         held at inaccessible building

00314    failure to enforce laws requiring handicapped parking
spaces, which were usually occupied by police cars

00315    high percentage of children with disabilities placed
         in segregated schools

00317    restrictive zoning limited reintegration of institutionalized
people into community

00319    inaccessible voting system

00323    inaccessible public transportation

00325    inaccessible public transportation made person with
         disability late for work; inaccessible library and other
         public buildings

00329    State refused to fund services for people with mental illness
00330    state transit system provided special vouchers for          
persons with physical disabilities, but not for mentally ill
00331    state criminal justice system failed to provide psychiatric treatment
00333    State kept child with schizophrenia in Delaware          
State Hospital because it lacked services for people who could be released
00335    state labor department's restrictive policies 
prevented persons with disabilities from applying for employment
00336    failure to enforce laws requiring handicapped parking spaces, which were usually occupied by police          cars
00337    public transportation refused to transport person carrying oxygen
00338    staff and patients at Delaware State Hospital 
sexually abused women patients
00343    inaccessible public transportation 
00345    state police interrogated deaf citizens without providing interpretive services
00347    vocational high school sought to transfer student back 
to special segregated school

GEORGIA
Page No.
00362    public colleges failed to provide assistance for students with learning disabilities
00365    University of Georgia students with disabilities faced 
architectural barriers, inaccessible public transportation, 
lack of housing, and failure to enforce handicapped parking laws

00366    inaccessible classrooms at University of Georgia

00367    University of Georgia located its office of handicapped
services in inaccessible second floor office

00370    University of Georgia charged students with learning
disabilities $600 per quarter for services that
         other students with disabilities received at no cost

00371    Learning Disability Adult Clinic at University of
         Georgia charged unreasonable fees

00372    inaccessible public transportation

00374    traffic court failed to provide interpretive services
         for deaf person

HAWAII

Page No.

00444    inaccessible public transportation

00446    inaccessible public transportation

00448    state university failed to enforce handicapped parking
laws

00451    state employee in wheelchair forced to resign job
         because frequently unable to get to office due to
         broken elevator in state building; State Commission
         on the Handicapped refused employees request for
         reasonable accommodation

00452    state university failed to provide blind student with
         timely or adequate books on tape for coursework;
         lack of signs or information for blind people using
         public transit

00455    person with disability denied opportunity to testify
         because department of labor held hearing in an inaccessible
room

00456    state employment agency refused to provide interpretive
services for deaf people

00457    public school put three-year-old deaf child in same
         class as fourth graders

00458    quadriplegic person who had California drivers license denied license by Hawaii
00460    state government office refused to interview 
persons with emotional disorder or history of alcoholism
00461    inaccessible state buildings
00462    person with mobility impairment denied serious consideration 
for state job due to unreliability of accessible public transportation
00463    inaccessible public transportation prevented person 
with disability from getting to work; inaccessible public buildings
00464    lack of curb cuts forced person in wheelchair to use street
00467    elevators in public buildings not marked for blind 
people; bus drivers failed to announce stops for blind people
00468    inaccessible public transportation; bus drivers 
harassed mentally retarded passengers
00469    inaccessible public transportation
00472    state mental health system had restrictive institutional policies
00473    state social service employees placed limits on opportunities 
for persons with disabilities based on stereotypical assumptions
00474    lack of curb cuts and ramps
00475    inaccessible public transportation
00476    inaccessible public transportation
00477    inaccessible public library
00479    denial of certain licenses to persons with mental disabilities
00480    inaccessible restroom in state park; lack of curb cuts
00484    state and local government meetings failed to 
provide interpretive services for deaf people
00485    students with disabilities unable to participate in          
school interscholastic sports

00486    blind people prevented from traveling outside State
         because quarantine laws permitted no exemption for
         their guide dogs

00487    state mental health services unavailable for deaf
         people due to failure to train staff

00488    inaccessible public transportation; inaccessible city
         and county buildings

00490    handi-van refused service to person paralyzed from
         waist down

00491    inaccessible public transportation

00492    state agencies failed to monitor conditions in community
residential facilities for persons with disabilities

00494    inaccessible public transportation

00495    inaccessible public transportation

00496    inadequate assistance for deaf person at court
         appearance

IDAHO

Page No.

00502    inaccessible public transportation

00505    inaccessible public transportation

00506    adult victims of abuse with developmental disabilities
denied equal rights to testify in court

00507    inaccessible public recreation activities

00508    inaccessible public transportation

00509    lack of curb cuts

00510    inaccessible public transportation

00511    city and county failed to provide assistance for deaf
         people at public meetings

00514    inaccessible public transportation

00515    public school failed to provide adequate assistance
         for students with disabilities

00516    inaccessible public transportation

00517    public defenders offices and public meetings failed to provide 
interpretive services for deaf people; police harassed persons with 
disabilities who appeared to be intoxicated
00518    vocational rehabilitation agency lacked TTY service
00521    government agencies lacked staff to assist people with head injuries
00522    inaccessible public transportation
00523    inaccessible public transportation
00524    inaccessible public transportation; inaccessible public buildings
00528    limited access at new county courthouse, library, and city hall
00531    school district refused to hire licensed teacher because of speech impediment
00533    public school failed to provide assistance for deaf student
00537    public school failed to provide interpretive services for deaf student
00540    Idaho lacked statewide telephone relay service for  deaf people
00541    department of employment and department of health          
and welfare lacked telephone access for deaf people
00543    inaccessible restrooms at public high school; student          
in wheelchair denied admission to regular classes

ILLINOIS
Page No.
00546    state system for providing ballots to people unable to enter 
polling place and special bus service caused long wait outside in cold weather 
00548    schools that mainstream deaf children refused to hire deaf teacher
00553    government failed to provide interpretive services          
for deaf people at public hearing on school budget

00554    lack of curb cuts; inaccessible public transportation

00559    department of rehabilitation limited services to persons
with disabilities by threatening placement in
         nursing home

00569    police stations lacked TTY service

00572    deaf people arrested and held in jail overnight without
explanation because of failure to provide interpretive
services

00573    inaccessible polling place

00574    inaccessible public schools prevented attendance at
         PTA meetings

00575    inaccessible public transportation

00576    inaccessible public transportation

00578    lack of curb cuts and ramps for wheelchairs

00579    most state housing agencies lacked telecommunications
devices or interpretive services for deaf people

00581    state and local government agencies lacked telecommunications
devices for deaf people

00583    emergency medical, police, and fire services lacked
         TDD's or personnel trained to receive TDD calls

00585    inaccessible public pools; inaccessible restrooms in
         municipal building

00586    inaccessible public transportation

00587    inaccessible polling place

00588    inaccessible polling place

00589    inaccessible public transportation

00590    inaccessible public transportation

00591    inaccessible library

00592    inaccessible voting system

00594    inaccessible polling place

00595    lack of curb cuts

00596    inaccessible public transportation

00597    inaccessible public transportation

00600    inaccessible public transportation

00603    inaccessible public transportation

00605    lack of curb cuts; inaccessible public buildings; 
inaccessible public transportation; inaccessible polling place

INDIANA
Page No.
00608    state vocational rehabilitation agency refused to help          
person it classified as severely disabled
00609    for five years, state vocational rehabilitation agency          
failed to provide assistance
00612    inadequate curb cuts
00613    inaccessible public transportation
00616    inaccessible public transportation
00618    inadequate curb cuts
00619    inaccessible public transportation; inaccessible public facilities
00621    inaccessible public transportation
00622    government agencies failed to provide interpretive          
services and TTY/TDD's for deaf people
00629    deaf counselors discouraged from applying for jobs          
as rehabilitation counselors for deaf people
00637    staff at state psychiatric facilities abused and physically dragged patients
00644    person with disability dismissed as director of deaf          
unit at Central State Hospital
00651    public meetings held at inaccessible locations
00653    inaccessible polling place
00655    state counselors failed to provide rehabilitation assistance to person with head injury

IOWA
Page No.
00659    person dismissed as city bus operator after seeking          
treatment for mental illness
00664    state commission failed to supply necessary equipment for deaf and blind employee

00665    high school limited opportunities for mentally retarded
student to be integrated

KANSAS

Page No.

00670    Kansas Commission of Civil Rights denied legally
         blind person job as investigator because of limited
ability to drive and refused to allow accommodation
that would have permitted use of public
         transportation

00673    police failed to provide interpretive services after
         arresting deaf man

00676    Kansas Department of Transportation fired person
         because she had epilepsy

00679    state investigator failed to examine employment discrimination
claims

00685    inaccessible public transportation

00695    county failed to assist mentally ill with housing and
         vocational opportunities

00696    damaged sidewalks and poor street lighting posed
         risk to persons with disabilities

00704    inaccessible city-owned arena

KENTUCKY

Page No.

00706    bus driver bypassed person standing at stop with
         guide dog

00709    inaccessible public transportation

00712    department of employment services failed to make
         reasonable accommodations for persons with disabilities


00717    lack of curb cuts; inaccessible public transportation

00720    inaccessible public transportation

00723    state employment service refused to place person in
         wheelchair

00724    inaccessible public buildings

00729    public library, police department, and state university 
library lacked personnel trained to use TTY          devices
00731    state university failed to provide assistance to 
part-time teacher with a disability
00732    State prevented deaf teachers from teaching deaf students 
by requiring courses such as music education
00733    inaccessible public transportation
00736    inaccessible public transportation
00740    Kentucky School for the Deaf preferred hiring hearing teachers rather than deaf teachers
LOUISIANA
Page No.
00743    inaccessible housing for graduate students at Louisiana State University
00745    inaccessible public transportation
00748    police assumed person with coordination problems was drunk
00751    inaccessible public transportation
00752    vocational rehabilitation program failed to provide          
services for person with head injury
00753    inaccessible public transportation prevented persons          
with disabilities from getting to work
00758    inaccessible voting machine
00759    Louisiana Sheriffs Pension and Relief Fund denied          
membership to person with disability
00773    inaccessible public transportation; lack of curb cuts
00776    inaccessible buildings at Louisiana State University

MAINE

Page No.
00778    inadequate sidewalk ramps; failure to enforce handicapped parking laws

00780    failure to enforce state regulations requiring accessibility
in public buildings

00782    town refused request for interpretive services for
         deaf people at town meeting

MARYLAND

Page No.

00785    public transportation unsafe for persons with disabilities


00787    public libraries, state prison, and other state offices
         lacked TDD's

00788    department of human relations failed to provide interpretive
services for deaf people and did not answer
TTY calls

00789    vocational rehabilitation counselors failed to help
         deaf people find jobs

00797    inaccessible public transportation

00798    state hospital refused to provide interpretive services
for deaf people

MASSACHUSETTS

Page No.

00808    Office for Children refused to license blind person as
         day-care assistant

00812    inaccessible courthouse

00813    inaccessible restrooms in state building and state
         armory

00816    state college threatened to terminate employee because
of blindness

00829    Massachusetts Adoption Exchange refused to let
         family with mother who had muscular dystrophy
         adopt child

00835    department of vocational rehabilitation hired able-bodied person 
instead of qualified person in  wheelchair

MICHIGAN
Page No.
00920    person denied admission to University of Michigan 
Medical School because of speech impediment
00921    inaccessible state university campuses
00922    65 percent of voting precincts in Detroit inaccessible
00923    buses with lifts often failed to stop for people in          
wheelchairs or their lifts did not work
00924    state employee threatened with discipline for serving          
on and attending meetings of Equal Employment Opportunity Commission advisory committee
00925    state university stadium lacked accessible restrooms,          
water fountains, and telephones
00926    inaccessible public transportation
00928    school system failed to hire teachers who could communicate with deaf students
00932    state university  denied interpretive services to          
part-time deaf student
00933    public transportation refused to serve persons in          
wheelchairs; public agency refused to provide interpretive services for deaf people
00939    state university had transportation system for students 
with disabilities but not for faculty and staff
00947    state university lacked adequate curb ramps
00950    State denied drivers license to person with epilepsy
00958    inaccessible public recreation facilities
00960    inaccessible government buildings
00961    state university denied sabbatical proposal of faculty          
member with disability
00963    Michigan Rehabilitation Services placed people in          
inappropriate positions

00964    Michigan Rehabilitation Services failed to accommodate
mentally ill persons

00968    inaccessible public transportation

00969    man with disability forced to use girls restroom at
         state job

00970    person with disability terminated from county job
         and banned from future county employment

MINNESOTA

Page No.

00974    person with disability and score of 100 was finalist
         for job as director of agency for the blind, but ablebodied
person with score of 70 was hired

00980    person with cerebral palsy humiliated at interview
         for job with state department of education

MISSISSIPPI

Page No.

00853    inaccessible public transportation

00855    inaccessible beaches, pools, and parks

00984    inaccessible classrooms and library at Mississippi
         School for the Deaf

00985    no state agency to provide or coordinate community
         service programs for deaf adults

00986    inaccessible classrooms at Mississippi School for the
         Deaf

00987    public programs failed to provide interpretive services
for deaf people; government failed to post caution
signs warning drivers of deaf children

00988    inaccessible polling places and voting booths

00989    inaccessible public buildings

00990    courts refused to pay for qualified interpretive services
for deaf people

00992    inaccessible state university building

00993    teacher denied position at public elementary school
         because of need for braces and a cane to walk

00994    lack of curb cuts; inaccessible public school rooms; inaccessible 
public transportation
00996    inaccessible department of motor vehicles
00997    inaccessible public transportation; inaccessible public facilities
00998    inaccessible courthouses
00999    state university instructor refused to teach blind person
01000    inaccessible public transportation
01001    inaccessible polling place; city employee required to          
go outside to get to restroom

MISSOURI
Page No.
01003    lack of curb cuts
01004    inaccessible restrooms in public buildings; lack of          
curb cuts
01006    public schools segregated children with disabilities;          
inaccessible school buildings
01009    inaccessible public transportation and public buildings 
such as post offices, libraries, schools, and polling places
01010    state university tried to discourage blind persons          
chosen field of study
01013    inaccessible public transportation
01015    courthouse failed to provide amplified sound system          
in courtrooms
MONTANA
Page No.
01017    inadequate curb cuts
01022    inadequate curb cuts in downtown area
01023    state agencies refused to make reasonable accommodations to paraplegics seeking employment
01024    inaccessible polling place

01026    person in wheelchair forced to vote in street

01027    inaccessible polling place

NEBRASKA

Page No.

01029    government failed to provide interpretive services
         for deaf people serving on juries, commissions, and
         committees

01031    local school district failed to provide interpretive
         services for deaf child

01034    inaccessible entrance at office of county assistance

NEVADA

Page No.

01038    local government failed to provide assistance for people
with head injuries

01043    inaccessible government buildings and public facilities

01044    person with disability denied access to public transportation
because it took too long to get on and off
         bus

01046    community college refused to provide interpretive
         services for deaf people

01050    city ordinance prevented mentally ill from living in
         residential areas

01051    inaccessible public transportation; inadequate curb
         cuts and ramps

01053    failure to enforce handicapped parking laws

01054    lack of sidewalk and crosswalk accommodations for
         persons in wheelchairs

NEW HAMPSHIRE

Page No.

01057    state agency failed to assist persons with head injuries
despite availability of state surplus funds

01061    vocational rehabilitation counselor tried to cut off          
funds and assistance to person with disability
NEW  JERSEY
Page No.
01067    commission for the blind and visually impaired demoted visually impaired person
01068    zoning commission denied permission to open home for persons with head injuries
01069    architectural barriers on Cumberland County College campus
01072    inadequate curb cuts
NEW  MEXICO
Page No.
01080    state university denied entry into school of social          
work to blind person but admitted partially sighted person with lower grades
01083    New Mexico lacked statewide TDD relay service
01091    prisoners with developmental disabilities subjected          
to longer terms and abused by other prisoners in state correctional system
01092    inaccessible public transportation
01095    University of New Mexico failed to provide assistance for blind student
01097    city and county government offices lacked TDD's
01098    University of New Mexico hospital failed to provide          
interpretive services for deaf patients
01099    University of New Mexico failed to provide interpretive services for deaf students
01100    inaccessible buildings on University of New Mexico campus

NEW YORK

Page No.

01109    state agencies failed to hire persons with disabilities

01114    custodian in public high school denied request of person
with disability to use locked elevator

01119    at state legislature, person in wheelchair had to wait
         45 minutes to use freight elevator

01129    public  village meetings held in second floor meeting
room with no elevator; many polling places
         inaccessible

01130    lack of curb cuts; failure to enforce handicapped parking
laws

01134    inaccessible state parks and public beaches

NORTH CAROLINA

Page No.

01144    public elementary school initially denied admission
         and then charged extra fee for child with Downs
         Syndrome to attend after-school day-care program

01155    blind people told not to participate in regular public
         parks and recreation programs

01158    state agencies, other than services for the blind and
         vocational rehabilitation, employed few persons
         with disabilities

01161    police arrested and jailed deaf person without providing
interpretive services

NORTH DAKOTA

Page No.

01170    person with disability denied access to driver's license
exam because held in inaccessible room

01172    inaccessible polling places

01175    lack of curb cuts; failure to enforce handicapped parking
laws; inaccessible polling places; inaccessible city
         government meetings

01178    failure to enforce handicapped parking laws
01183    inaccessible polling places; inaccessible state and          
local government buildings
01185    government agencies failed to enforce policies regarding hiring 
persons with disabilities; inaccessible polling places; inaccessible public buildings
01186    state and local government failed to hire persons          
with disabilities; inaccessible polling places
01187    failure to enforce handicapped parking laws
01196    person with head-injury disability denied consideration for position 
of election polls inspector

OHIO
Page No.
01215    city failed to trim trees regularly, which posed a          
hazard to blind people
01216    inaccessible state, county, and city buildings
01218    inaccessible social service agency offices; inaccessible          
public transportation
01221    vocational rehabilitation agency denied assistance to          
person with disability
01224    rehabilitation services agency failed to assist paranoid schizophrenic
01229    vocational rehabilitation agency discouraged person          
with disability from being a nurse
01230    persons with disabilities denied jobs because of inaccessible public transportation
01231    blind person denied drivers license though legally          
eligible
01234    inaccessible public transportation; lack of curb cuts
01235    public paratransit system often left passengers          
stranded
01236    vocational rehabilitation agency steered person with          
mental disability to menial job, despite his Ph.D. degree

01239    police failed to provide interpretive services for deaf
         person who was arrested

01241    Cleveland State University lacked wheelchair ramps

01242    inaccessible public transportation

OKLAHOMA

Page No.

01251    Tulsa Housing Authority failed to communicate with
         and provide information to tenants with disabilities

01258    state employment office lacked TDD or workers with
         interpretive skills; state university paid deaf employees
less than hearing employees; state agencies made
         no effort to hire deaf applicants

01265    police officer pointed gun at person with disability
         who could not get out of car quickly

01266    inaccessible public transportation

01269    person with speech impediment denied numerous
         state jobs

01271    inaccessible restrooms at city parks

01275    state government held meeting at hotel with inaccessible
restrooms

01278    person in wheelchair worked at polling  place with
         inaccessible restrooms

01280    inaccessible polling places

01286    qualified blind person who offered to provide own
         driver denied job as state social worker

OREGON

Page No.

01370    blind people unable to access printed material from
         state government

01375    school system barred child with cerebral palsy from
         physical education class and gave her cleaning job
         instead

01377    person with two college degrees and extensive professional 
experience turned down for appropriate state government jobs and 
advised to seek entry level jobs because of his disability
01378    commission for the handicapped lacked funds to enforce laws

PENNSYLVANIA
Page No.
01391    public library had restrictive policy regarding issuance 
of library cards to residents of group homes
01397    government failed to provide interpretive services          
for deaf people at school budget hearing
01399    inaccessible public transportation
01407    inaccessible polling places
01408    inaccessible public transportation
01409    inaccessible polling places
01410    inaccessible polling place
01413    inaccessible public transportation; lack of curb cuts
01421    inaccessible public library
01423    inaccessible automatic ticket dispensers on Pennsylvania Turnpike
01425    bus drivers refused to transport person in wheelchair
01427    inaccessible county offices
01429    lack of curb cuts
01430    GED programs offered at inaccessible public schools;          
bus drivers unwilling or unable to use wheelchair lifts
01432    child unable to enroll in first grade because of inaccessible classroom
01434    lack of curb cuts; inaccessible public transportation
01435    lack of curb cuts in rural areas
01436    inaccessible polling place

01439    unsafe curb cuts

01441    inaccessible state office building

SOUTH CAROLINA

Page No.

01454    government failed to provide 911 emergency service
         for deaf people

01457    state and local agencies, library, and police and fire
         departments lacked TDD's; government failed to provide
interpretive services for deaf people at meetings

SOUTH DAKOTA

Page No.

01466    school district failed to provide adequate services to
         child with disability

01467    traffic light and fire hydrant placed where they posed
         obstacle to blind pedestrians and those in wheelchairs
who needed to use curb cuts

01469    inaccessible polling places

01470    inaccessible public transportation

01472    State failed to hire persons with disabilities without
         giving a reason

01475    criminal court failed to provide interpretive services
         for deaf people

01476    state university denied blind student opportunity to
         practice teach as required for teaching certificate

TEXAS

Page No.

01483    poles obstructed sidewalks; lack of curb cuts; inaccessible
public transportation

01503    state teachers exam required deaf teachers who
         wanted to teach deaf children to pass section on
         speech assessment and listening

01514    medical examination required for renewal of drivers          
license despite unblemished 20-year driving record
01520    inadequate handicapped parking spaces
01521    state vocational rehabilitation agency refused to assist 
college student who chose to major in political science
01522    employee of county human services agency denied 
handicapped parking place
01526    failure to enforce handicapped parking laws
01527    inaccessible state university transportation system
01529    denial of drivers licenses or accommodations to take          
driver's test
01531    inaccessible buildings at state university
01536    state hospital sought to discharge mentally ill boy          
with HIV
01540    special transit system refused to transport man with          
mental retardation though he could not use regular bus
01542    deaf man not permitted to take state cosmetology 
exam with assistance from interpreter
01543    blind man not permitted to take state chiropractic 
exam because he could not read x-rays alone
01549    deaf instructors unable to pass state teachers exam          
for teachers of deaf students that assessed speech  and language skills
01551    inadequate handicapped parking and enforcement
UTAH
Page No.
01554    state rehabilitation service had never hired deaf          
counselor or administrator
01556    child denied admission to public school because first 
grade teacher refused to teach him
01563    public school failed to implement state review panel          
findings regarding accommodation for child with disability

01576    state office for persons with disabilities failed to hire
         such persons; inaccessible public transportation

01577    state government denied persons with disabilities
         upper level management jobs

01580    rehabilitation services agency discriminated against
         employee with reading disability

01581    qualified blind teacher denied job and told that school
         needed teacher who could also coach football, but
         school hired sighted person who was not a coach

01584    inaccessible public transportation

01586    inaccessible government office

01587    public school teacher refused to give child with learning
disability his grades and said he did not belong
         in public school

01592    Utah denied mainstream education to child with
         Down's Syndrome, though child had been mainstreamed
in another State

01595    person with disability involuntarily hospitalized and
         abused by state university hospital

01613    inaccessible public high school facilities

VERMONT

Page No.

01634    zoning board denied use permit for community mental
health center

VIRGINIA

Page No.

01642    student with learning disability misclassified as mentally
retarded and deemed ineligible to take drama
         class at public school

01646    inaccessible buildings at state school for blind and
         deaf youth

01647    failure to enforce handicapped parking laws

01654    inaccessible restrooms in government buildings; failure
to enforce handicapped parking laws

01656    state programs for persons with disabilities failed to          
communicate with deaf people
01660    lack of state institutional care to rehabilitate people          
with head injuries
01663    inaccessible traffic court
01664    inaccessible public transportation
01667    lack of curb cuts
01668    inaccessible public transportation prevented persons          
with disabilities from voting
01671    state and local government failed to provide interpretive 
services for deaf people at meetings
01674    lack of curb cuts outside county courthouse
01675    deaf people denied access to 911 emergency services
01676    inaccessible courthouse
01677    inaccessible public transportation
01678    lack of curb cuts and ramp for access to courthouse
01679    inaccessible county courthouse
01680    inaccessible courthouse and library
01682    inaccessible high school
01683    lack of curb cuts at citys main intersection
01684    person in wheelchair received ticket for obstructing          
street traffic even though sidewalks not accessible
01686    inaccessible transportation on state university          campus
WASHINGTON
Page No.
01690    deaf people required to pay for interpretive services          
in court
01692    state governments lack of TDD deterred deaf people          
from applying for employment
01694    government office lacked TDD and interpretive services for deaf people

01767    inaccessible polling places

01771    blind and deaf people denied equal access to jury
         service

WYOMING

Page No.

01773    State lacked telephone relay system for deaf people

01775    inaccessible state buildings

01777    department of motor vehicles denied drivers license
         to person with epilepsy

01780    inaccessible buildings at state university

01781    zoning board denied permit for group home for persons
with disabilities

01786    person in wheelchair denied marriage license because
         courthouse was inaccessible

01656    state programs for persons with disabilities failed to          
communicate with deaf people
01660    lack of state institutional care to rehabilitate people          
with head injuries
01663    inaccessible traffic court
01664    inaccessible public transportation
01667    lack of curb cuts
01668    inaccessible public transportation prevented persons          
with disabilities from voting
01671    state and local government failed to provide interpretive services for deaf people at meetings
01674    lack of curb cuts outside county courthouse
01675    deaf people denied access to 911 emergency services
01676    inaccessible courthouse
01677    inaccessible public transportation
01678    lack of curb cuts and ramp for access to courthouse
01679    inaccessible county courthouse
01680    inaccessible courthouse and library
01682    inaccessible high school
01683    lack of curb cuts at citys main intersection
01684    person in wheelchair received ticket for obstructing          
street traffic even though sidewalks not accessible
01686    inaccessible transportation on state university          
campus
WASHINGTON 
Page No.
01690    deaf people required to pay for interpretive services          
in court
01692    state governments lack of TDD deterred deaf people          
from applying for employment
01694    government office lacked TDD and interpretive services for deaf people

01767    inaccessible polling places

01771    blind and deaf people denied equal access to jury
         service

WYOMING
Page No.

01773    State lacked telephone relay system for deaf people

01775    inaccessible state buildings

01777    department of motor vehicles denied drivers license
         to person with epilepsy

01780    inaccessible buildings at state university

01781    zoning board denied permit for group home for persons
with disabilities

01786    person in wheelchair denied marriage license because
         courthouse was inaccessible

Estelle T. Griswold et al. v. State of Connecticut.

Argued March 29-30, 1965.

Decided June 7, 1965.

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT.

Thomas I. Emerson argued the cause for appellants. With him on the briefs was Catherine G. Roraback.

Joseph B. Clark argued the cause for appellee. With him on the brief was Julius Maretz.

Briefs of amici curiae, urging reversal, were filed by Whitney North Seymour and Eleanor M. Fox for Dr. John M. Adams et al.; by Morris L. Ernst, Harriet F. Pilpeland Nancy F. Wechsler for the Planned Parenthood Federation of America, Inc.; by Alfred L. Scanlon for the Catholic Council on Civil Liberties, and by Rhoda H. Karpatkin, Melvin L. Wulf and Jerome E. Caplan for the American Civil Liberties Union et al.

*480 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven—a center open and operating from November 1 to November 10, 1961, when appellants were arrested.

They gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.

The statutes whose constitutionality is involved in this appeal are §§ 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). The former provides:

"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."

Section 54-196 provides:

"Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender."

The appellants were found guilty as accessories and fined $100 each, against the claim that the accessory statute as so applied violated the Fourteenth Amendment. The Appellate Division of the Circuit Court affirmed. The Supreme Court of Errors affirmed that judgment. 151 Conn. 544, 200 A. 2d 479. We noted probable jurisdiction. 379 U. S. 926.

*481 We think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship. Tileston v. Ullman,318 U. S. 44, is different, for there the plaintiff seeking to represent others asked for a declaratory judgment. In that situation we thought that the requirements of standing should be strict, lest the standards of "case or controversy" in Article III of the Constitution become blurred. Here those doubts are removed by reason of a criminal conviction for serving married couples in violation of an aiding-and-abetting statute. Certainly the accessory should have standing to assert that the offense which he is charged with assisting is not, or cannot constitutionally be, a crime.

This case is more akin to Truax v. Raich, 239 U. S. 33, where an employee was permitted to assert the rights of his employer; to Pierce v. Society of Sisters, 268 U. S. 510, where the owners of private schools were entitled to assert the rights of potential pupils and their parents; and to Barrows v. Jackson, 346 U. S. 249, where a white defendant, party to a racially restrictive covenant, who was being sued for damages by the covenantors because she had conveyed her property to Negroes, was allowed to raise the issue that enforcement of the covenant violated the rights of prospective Negro purchasers to equal protection, although no Negro was a party to the suit. And see Meyer v. Nebraska, 262 U. S. 390; Adler v. Board of Education, 342 U. S. 485; NAACP v. Alabama, 357 U. S. 449; NAACP v. Button,371 U. S. 415. The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.

Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments *482 suggest that Lochner v. New York, 198 U. S. 45, should be our guide. But we decline that invitation as we did in West Coast Hotel Co. v. Parrish,300 U. S. 379; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525; Williamson v. Lee Optical Co., 348 U. S. 483; Giboney v. Empire Storage Co., 336 U. S. 490. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice—whether public or private or parochial—is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U. S. 183, 195)—indeed the freedom of the entire university community. Sweezy v. New Hampshire,354 U. S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U. S. 109, 112; Baggett v. Bullitt, 377 U. S. 360, 369. Without *483 those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

In NAACP v. Alabama, 357 U. S. 449, 462, we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U. S. 415, 430-431. In Schware v. Board of Bar Examiners,353 U. S. 232, we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" (id., at 244) and was not action of a kind proving bad moral character. Id., at 245-246.

Those cases involved more than the "right of assembly" —a right that extends to all irrespective of their race or ideology. De Jonge v. Oregon, 299 U. S. 353. The right of "association," like the right of belief (Board of Education v. Barnette, 319 U. S. 624), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.

*484 The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."* We recently referred *485 in Mapp v. Ohio,367 U. S. 643, 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully and particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960).

We have had many controversies over these penumbral rights of "privacy and repose." See, e. g., Breard v. Alexandria, 341 U. S. 622, 626, 644; Public Utilities Comm'n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167; Lanza v. New York, 370 U. S. 139; Frank v. Maryland, 359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama, 377 U. S. 288, 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The *486 very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Reversed.

*

 The Court said in full about this right of privacy:

"The principles laid down in this opinion [by Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence,—it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other." 116 U. S., at 630.

MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring.

I agree with the Court that Connecticut's birth-control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that "due process" as used in the Fourteenth Amendment incorporates all of the first eight Amendments (see my concurring opinion in Pointer v. Texas, 380 U. S. 400, 410, and the dissenting opinion of MR. JUSTICE BRENNAN in Cohen v. Hurley, 366 U. S. 117, 154), I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution1 is supported both by numerous *487 decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante, at 484. I add these words to emphasize the relevance of that Amendment to the Court's holding.

The Court stated many years ago that the Due Process Clause protects those liberties that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 97, 105. In Gitlow v. New York, 268 U. S. 652, 666, the Court said:

"For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and `liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." (Emphasis added.)

*488 And, in Meyer v. Nebraska, 262 U. S. 390, 399, the Court, referring to the Fourteenth Amendment, stated:

"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also [for example,] the right . . . to marry, establish a home and bring up children . . . ."

This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights.2 The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.

The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights3 could not be sufficiently broad to cover all essential *489 rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.4

In presenting the proposed Amendment, Madison said:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the *490 last clause of the fourth resolution [the Ninth Amendment]." I Annals of Congress 439 (Gales and Seaton ed. 1834).

Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:

"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis . . . . But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people." II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891).

He further stated, referring to the Ninth Amendment:

"This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso,that a negation in particular cases implies an affirmation in all others." Id., at 651.

These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.5

While this Court has had little occasion to interpret the Ninth Amendment,6 "[i]t cannot be presumed that any *491 clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174. In interpreting the Constitution, "real effect should be given to all the words it uses." Myers v. United States, 272 U. S. 52, 151. The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that *492 "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (Emphasis added.)

A dissenting opinion suggests that my interpretation of the Ninth Amendment somehow "broaden[s] the powers of this Court." Post, at 520. With all due respect, I believe that it misses the import of what I am saying. I do not take the position of my Brother BLACK in his dissent in Adamson v. California, 332 U. S. 46, 68, that the entire Bill of Rights is incorporated in the Fourteenth Amendment, and I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. As any student of this Court's opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. See, e. g., Bolling v. Sharpe, 347 U. S. 497; Aptheker v. Secretary of State, 378 U. S. 500; Kent v. Dulles, 357 U. S. 116; Cantwell v. Connecticut, 310 U. S. 296; NAACP v. Alabama, 357 U. S. 449; Gideon v. Wainwright, 372 U. S. 335; New York Times Co. v. Sullivan, 376 U. S. 254. The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority *493 of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.

Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State's infringement of a fundamental right. While the Ninth Amendment—and indeed the entire Bill of Rights—originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U. S. 75, 94-95.

In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] . . . as to be ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 97, 105. The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those `fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' . . . ." Powell v. Alabama, 287 U. S. 45, 67. "Liberty" also "gains content from the emanations of . . . specific [constitutional] guarantees" and "from experience with the requirements of a free society." Poe *494 v. Ullman, 367 U. S. 497, 517 (dissenting opinion of MR. JUSTICE DOUGLAS).7

I agree fully with the Court that, applying these tests, the right of privacy is a fundamental personal right, emanating "from the totality of the constitutional scheme under which we live." Id., at 521. Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U. S. 438, 478, comprehensively summarized the principles underlying the Constitution's guarantees of privacy:

"The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone— the most comprehensive of rights and the right most valued by civilized men."

*495 The Connecticut statutes here involved deal with a particularly important and sensitive area of privacy—that of the marital relation and the marital home. This Court recognized in Meyer v. Nebraska, supra, that the right "to marry, establish a home and bring up children" was an essential part of the liberty guaranteed by the Fourteenth Amendment. 262 U. S., at 399. In Pierce v. Society of Sisters, 268 U. S. 510, the Court held unconstitutional an Oregon Act which forbade parents from sending their children to private schools because such an act "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." 268 U. S., at 534-535. As this Court said in Prince v. Massachusetts, 321 U. S. 158, at 166, the Meyer and Pierce decisions "have respected the private realm of family life which the state cannot enter."

I agree with MR. JUSTICE HARLAN's statement in his dissenting opinion in Poe v. Ullman, 367 U. S. 497, 551-552: "Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. . . . Of this whole `private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations."

The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.

Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution *496 explicitly forbids the State from disrupting the traditional relation of the family—a relation as old and as fundamental as our entire civilization—surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.

My Brother STEWART, while characterizing the Connecticut birth control law as "an uncommonly silly law," post, at 527, would nevertheless let it stand on the ground that it is not for the courts to " `substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.' " Post, at 528. Elsewhere, I have stated that "[w]hile I quite agree with Mr. Justice Brandeis that . . . `a . . . State may . . . serve as a laboratory; and try novel social and economic experiments,' New State Ice Co. v. Liebmann, 285 U. S. 262, 280, 311 (dissenting opinion), I do not believe that this includes the power to experiment with the fundamental liberties of citizens . . . ."8 The vice of the dissenters' views is that it would permit such experimentation by the States in the area of the fundamental personal rights of its citizens. I cannot agree that the Constitution grants such power either to the States or to the Federal Government.

The logic of the dissents would sanction federal or state legislation that seems to me even more plainly unconstitutional than the statute before us. Surely the Government, absent a showing of a compelling subordinating state interest, could not decree that all husbands and wives must be sterilized after two children have been born *497 to them. Yet by their reasoning such an invasion of marital privacy would not be subject to constitutional challenge because, while it might be "silly," no provision of the Constitution specifically prevents the Government from curtailing the marital right to bear children and raise a family. While it may shock some of my Brethren that the Court today holds that the Constitution protects the right of marital privacy, in my view it is far more shocking to believe that the personal liberty guaranteed by the Constitution does not include protection against such totalitarian limitation of family size, which is at complete variance with our constitutional concepts. Yet, if upon a showing of a slender basis of rationality, a law outlawing voluntary birth control by married persons is valid, then, by the same reasoning, a law requiring compulsory birth control also would seem to be valid. In my view, however, both types of law would unjustifiably intrude upon rights of marital privacy which are constitutionally protected.

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling," Bates v. Little Rock, 361 U. S. 516, 524. The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy." McLaughlin v. Florida, 379 U. S. 184, 196. See Schneiderv. Irvington, 308 U. S. 147, 161.

Although the Connecticut birth-control law obviously encroaches upon a fundamental personal liberty, the State does not show that the law serves any "subordinating [state] interest which is compelling" or that it is "necessary *498. . . to the accomplishment of a permissible state policy." The State, at most, argues that there is some rational relation between this statute and what is admittedly a legitimate subject of state concern—the discouraging of extra-marital relations. It says that preventing the use of birth-control devices by married persons helps prevent the indulgence by some in such extramarital relations. The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of conception, see Tileston v. Ullman, 129 Conn. 84, 26 A. 2d 582. But, in any event, it is clear that the state interest in safeguarding marital fidelity can be served by a more discriminately tailored statute, which does not, like the present one, sweep unnecessarily broadly, reaching far beyond the evil sought to be dealt with and intruding upon the privacy of all married couples. See Aptheker v. Secretary of State, 378 U. S. 500, 514; NAACP v. Alabama, 377 U. S. 288, 307-308; McLaughlin v. Florida, supra, at 196. Here, as elsewhere, where, "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms." NAACP v. Button, 371 U. S. 415, 438. The State of Connecticut does have statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication. See Conn. Gen. Stat. §§ 53-218, 53-219 et seq. These statutes demonstrate that means for achieving the same basic purpose of protecting marital fidelity are available to Connecticut without the need to "invade the area of protected freedoms." NAACP v. Alabama, supra, at 307. See McLaughlin v. Florida, supra, at 196.

Finally, it should be said of the Court's holding today that it in no way interferes with a State's proper regulation *499 of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in his dissenting opinion in Poe v. Ullman, supra,at 553.

"Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy."

In sum, I believe that the right of privacy in the marital relation is fundamental and basic—a personal right "retained by the people" within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners' convictions must therefore be reversed.

1

 My Brother STEWART dissents on the ground that he "can find no . . . general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court." Post, at 530. He would require a more explicit guarantee than the one which the Court derives from several constitutional amendments. This Court, however, has never held that the Bill of Rights or the Fourteenth Amendment protects only those rights that the Constitution specifically mentions by name. See, e. g., Bolling v. Sharpe, 347 U. S. 497; Aptheker v. Secretary of State, 378 U. S. 500; Kent v. Dulles, 357 U. S. 116; Carrington v. Rash, 380 U. S. 89, 96; Schware v. Board of Bar Examiners, 353 U. S. 232; NAACP v. Alabama, 360 U. S. 240; Pierce v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 390. To the contrary, this Court, for example, in Bolling v. Sharpe, supra, while recognizing that the Fifth Amendment does not contain the "explicit safeguard" of an equal protection clause, id., at 499, nevertheless derived an equal protection principle from that Amendment's Due Process Clause. And in Schware v. Board of Bar Examiners, supra, the Court held that the Fourteenth Amendment protects from arbitrary state action the right to pursue an occupation, such as the practice of law.

2

 See, e. g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226; Gitlow v. New York, supra; Cantwell v. Connecticut, 310 U. S. 296; Wolf v. Colorado, 338 U. S. 25; Robinson v. California, 370 U. S. 660; Gideon v. Wainwright, 372 U. S. 335; Malloy v. Hogan, 378 U. S. 1; Pointer v. Texas, supra; Griffin v. California, 380 U. S. 609.

3

 Madison himself had previously pointed out the dangers of inaccuracy resulting from the fact that "no language is so copious as to supply words and phrases for every complex idea." The Federalist, No. 37 (Cooke ed. 1961), at 236.

4

 Alexander Hamilton was opposed to a bill of rights on the ground that it was unnecessary because the Federal Government was a government of delegated powers and it was not granted the power to intrude upon fundamental personal rights. The Federalist, No. 84 (Cooke ed. 1961), at 578-579. He also argued,

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power." Id., at 579.

The Ninth Amendment and the Tenth Amendment, which provides, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," were apparently also designed in part to meet the above-quoted argument of Hamilton.

5

 The Tenth Amendment similarly made clear that the States and the people retained all those powers not expressly delegated to the Federal Government.

6

 This Amendment has been referred to as "The Forgotten Ninth Amendment," in a book with that title by Bennett B. Patterson (1955). Other commentary on the Ninth Amendment includes Redlich, Are There "Certain Rights . . . Retained by the People"? 37 N. Y. U. L. Rev. 787 (1962), and Kelsey, The Ninth Amendment of the Federal Constitution, 11 Ind. L. J. 309 (1936). As far as I am aware, until today this Court has referred to the Ninth Amendment only in United Public Workers v. Mitchell, 330 U. S. 75, 94-95; Tennessee Electric Power Co. v. TVA, 306 U. S. 118, 143-144; and Ashwander v. TVA, 297 U. S. 288, 330-331. See also Calder v. Bull, 3 Dall. 386, 388; Loan Assn. v. Topeka, 20 Wall. 655, 662-663.

In United Public Workers v. Mitchell, supra, at 94-95, the Court stated: "We accept appellants' contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth and Tenth Amendments. And, if we look upon due process as a guarantee of freedom in those fields, there is a corresponding impairment of that right under the Fifth Amendment."

7

 In light of the tests enunciated in these cases it cannot be said that a judge's responsibility to determine whether a right is basic and fundamental in this sense vests him with unrestricted personal discretion. In fact, a hesitancy to allow too broad a discretion was a substantial reason leading me to conclude in Pointer v. Texas, supra, at 413-414, that those rights absorbed by the Fourteenth Amendment and applied to the States because they are fundamental apply with equal force and to the same extent against both federal and state governments. In Pointer I said that the contrary view would require "this Court to make the extremely subjective and excessively discretionary determination as to whether a practice, forbidden the Federal Government by a fundamental constitutional guarantee, is, as viewed in the factual circumstances surrounding each individual case, sufficiently repugnant to the notion of due process as to be forbidden the States." Id., at 413.

8

 Pointer v. Texas, supra, at 413. See also the discussion of my Brother DOUGLAS. Poe v. Ullman, supra, at 517-518 (dissenting opinion).

MR. JUSTICE HARLAN, concurring in the judgment.

I fully agree with the judgment of reversal, but find myself unable to join the Court's opinion. The reason is that it seems to me to evince an approach to this case very much like that taken by my Brothers BLACK and STEWART in dissent, namely: the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.

*500 In other words, what I find implicit in the Court's opinion is that the "incorporation" doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the "incorporation" approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them. See, e. g., my concurring opinions in Pointer v. Texas, 380 U. S. 400, 408, and Griffin v. California, 380 U. S. 609, 615, and my dissenting opinion in Poe v. Ullman, 367 U. S. 497, 522, at pp. 539-545.

In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319, 325. For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.

A further observation seems in order respecting the justification of my Brothers BLACK and STEWART for their "incorporation" approach to this case. Their approach does not rest on historical reasons, which are of course wholly lacking (see Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949)), but on the thesis that by limiting the content of the Due Process Clause of the Fourteenth Amendment to the protection of rights which can be found elsewhere in the Constitution, in this instance in the Bill of Rights, judges will thus be confined to "interpretation" of specific constitutional *501 provisions, and will thereby be restrained from introducing their own notions of constitutional right and wrong into the "vague contours of the Due Process Clause." Rochin v. California, 342 U. S. 165, 170.

While I could not more heartily agree that judicial "self restraint" is an indispensable ingredient of sound constitutional adjudication, I do submit that the formula suggested for achieving it is more hollow than real. "Specific" provisions of the Constitution, no less than "due process," lend themselves as readily to "personal" interpretations by judges whose constitutional outlook is simply to keep the Constitution in supposed "tune with the times" (post, p. 522). Need one go further than to recall last Term's reapportionment cases, Wesberry v. Sanders, 376 U. S. 1. and Reynolds v. Sims, 377 U. S. 533, where a majority of the Court "interpreted" "by the People" (Art. I, § 2) and "equal protection" (Amdt. 14) to command "one person, one vote," an interpretation that was made in the face of irrefutable and still unanswered history to the contrary? See my dissenting opinions in those cases, 376 U. S., at 20; 377 U. S., at 589.

Judicial self-restraint will not, I suggest, be brought about in the "due process" area by the historically unfounded incorporation formula long advanced by my Brother BLACK, and now in part espoused by my Brother STEWART. It will be achieved in this area, as in other constitutional areas, only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms. See Adamson v. California, 332 U. S. 46, 59 (Mr. Justice Frankfurter, concurring). Adherence to these principles will not, of course, obviate all constitutional differences of opinion among judges, nor should it. Their continued recognition *502 will, however, go farther toward keeping most judges from roaming at large in the constitutional field than will the interpolation into the Constitution of an artificial and largely illusory restriction on the content of the Due Process Clause.*

*

 Indeed, my Brother BLACK, in arguing his thesis, is forced to lay aside a host of cases in which the Court has recognized fundamental rights in the Fourteenth Amendment without specific reliance upon the Bill of Rights. Post, p. 512, n. 4.

MR. JUSTICE WHITE, concurring in the judgment.

In my view this Connecticut law as applied to married couples deprives them of "liberty" without due process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut's aiding and abetting statute.

It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right "to marry, establish a home and bring up children," Meyer v. Nebraska, 262 U. S. 390, 399, and "the liberty . . . to direct the upbringing and education of children," Pierce v. Society of Sisters, 268 U. S. 510, 534-535, and that these are among "the basic civil rights of man." Skinner v. Oklahoma, 316 U. S. 535, 541. These decisions affirm that there is a "realm of family life which the state cannot enter" without substantial justification. Prince v. Massachusetts, 321 U. S. 158, 166. Surely the right invoked in this case, to be free of regulation of the intimacies of *503 the marriage relationship, "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." Kovacs v. Cooper, 336 U. S. 77, 95 (opinion of Frankfurter, J.).

The Connecticut anti-contraceptive statute deals rather substantially with this relationship. For it forbids all married persons the right to use birth-control devices, regardless of whether their use is dictated by considerations of family planning, Trubek v. Ullman, 147 Conn. 633, 165 A. 2d 158, health, or indeed even of life itself. Buxton v. Ullman, 147 Conn. 48, 156 A. 2d 508. The anti-use statute, together with the general aiding and abetting statute, prohibits doctors from affording advice to married persons on proper and effective methods of birth control. Tileston v. Ullman, 129 Conn. 84, 26 A. 2d 582. And the clear effect of these statutes, as enforced, is to deny disadvantaged citizens of Connecticut, those without either adequate knowledge or resources to obtain private counseling, access to medical assistance and up-to-date information in respect to proper methods of birth control. State v. Nelson, 126 Conn. 412, 11 A. 2d 856; State v. Griswold, 151 Conn. 544, 200 A. 2d 479. In my view, a statute with these effects bears a substantial burden of justification when attacked under the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U. S. 356; Skinner v. Oklahoma,316 U. S. 535; Schware v. Board of Bar Examiners, 353 U. S. 232; McLaughlin v. Florida, 379 U. S. 184, 192.

An examination of the justification offered, however, cannot be avoided by saying that the Connecticut anti-use statute invades a protected area of privacy and association or that it demeans the marriage relationship. The nature of the right invaded is pertinent, to be sure, for statutes regulating sensitive areas of liberty do, under *504 the cases of this Court, require "strict scrutiny," Skinner v. Oklahoma,316 U. S. 535, 541, and "must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U. S. 479, 488. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." Bates v. Little Rock, 361 U. S. 516, 524. See also McLaughlin v. Florida, 379 U. S. 184. But such statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application, are not invalid under the Due Process Clause. Zemel v. Rusk, 381 U. S. 1.*

*505 As I read the opinions of the Connecticut courts and the argument of Connecticut in this Court, the State claims but one justification for its anti-use statute. Cf. Allied Stores of Ohio v. Bowers, 358 U. S. 522, 530; Martin v. Walton,368 U. S. 25, 28 (DOUGLAS, J., dissenting). There is no serious contention that Connecticut thinks the use of artificial or external methods of contraception immoral or unwise in itself, or that the anti-use statute is founded upon any policy of promoting population expansion. Rather, the statute is said to serve the State's policy against all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital, concededly a permissible and legitimate legislative goal.

Without taking issue with the premise that the fear of conception operates as a deterrent to such relationships in addition to the criminal proscriptions Connecticut has against such conduct, I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships. See Schware v. Board of Bar Examiners, 353 U. S. 232, 239. Connecticut does not bar the importation or possession of contraceptive devices; they are not considered contraband material under state law, State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A. 2d 863, and their availability in that State is not seriously disputed. The only way Connecticut seeks to limit or control the availability of such devices is through its general aiding and abetting statute whose operation in this context has *506 been quite obviously ineffective and whose most serious use has been against birth-control clinics rendering advice to married, rather than unmarried, persons. Cf. Yick Wo v. Hopkins, 118 U. S. 356. Indeed, after over 80 years of the State's proscription of use, the legality of the sale of such devices to prevent disease has never been expressly passed upon, although it appears that sales have long occurred and have only infrequently been challenged. This "undeviating policy . . . throughout all the long years . . . bespeaks more than prosecutorial paralysis." Poe v. Ullman, 367 U. S. 497, 502. Moreover, it would appear that the sale of contraceptives to prevent disease is plainly legal under Connecticut law.

In these circumstances one is rather hard pressed to explain how the ban on use by married persons in any way prevents use of such devices by persons engaging in illicit sexual relations and thereby contributes to the State's policy against such relationships. Neither the state courts nor the State before the bar of this Court has tendered such an explanation. It is purely fanciful to believe that the broad proscription on use facilitates discovery of use by persons engaging in a prohibited relationship or for some other reason makes such use more unlikely and thus can be supported by any sort of administrative consideration. Perhaps the theory is that the flat ban on use prevents married people from possessing contraceptives and without the ready availability of such devices for use in the marital relationship, there will be no or less temptation to use them in extramarital ones. This reasoning rests on the premise that married people will comply with the ban in regard to their marital relationship, notwithstanding total nonenforcement in this context and apparent nonenforcibility, but will not comply with criminal statutes prohibiting extramarital affairs and the anti-use statute in respect to illicit sexual relationships, a premise whose validity has not been *507 demonstrated and whose intrinsic validity is not very evident. At most the broad ban is of marginal utility to the declared objective. A statute limiting its prohibition on use to persons engaging in the prohibited relationship would serve the end posited by Connecticut in the same way, and with the same effectiveness, or ineffectiveness, as the broad anti-use statute under attack in this case. I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law.

*

 Dissenting opinions assert that the liberty guaranteed by the Due Process Clause is limited to a guarantee against unduly vague statutes and against procedural unfairness at trial. Under this view the Court is without authority to ascertain whether a challenged statute, or its application, has a permissible purpose and whether the manner of regulation bears a rational or justifying relationship to this purpose. A long line of cases makes very clear that this has not been the view of this Court. Dent v. West Virginia, 129 U. S. 114; Jacobson v. Massachusetts, 197 U. S. 11; Douglas v. Noble, 261 U. S. 165; Meyer v. Nebraska, 262 U. S. 390; Pierce v. Society of Sisters, 268 U. S. 510; Schware v. Board of Bar Examiners, 353 U. S. 232; Aptheker v. Secretary of State, 378 U. S. 500; Zemel v. Rusk, 381 U. S. 1.

The traditional due process test was well articulated, and applied, in Schware v. Board of Bar Examiners, supra, a case which placed no reliance on the specific guarantees of the Bill of Rights.

"A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. Dent v. West Virginia, 129 U. S. 114. Cf. Slochower v. Board of Education, 350 U. S. 551; Wieman v. Updegraff, 344 U. S. 183. And see Ex parte Secombe, 19 How. 9, 13. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Douglas v. Noble, 261 U. S. 165; Cummings v. Missouri, 4 Wall. 277, 319-320. Cf. Nebbia v. New York, 291 U. S. 502. Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory." 353 U. S., at 238-239. Cf. Martin v. Walton, 368 U. S. 25, 26 (DOUGLAS, J., dissenting).

MR. JUSTICE BLACK, with whom MR. JUSTICE STEWART joins, dissenting.

I agree with my Brother STEWART'S dissenting opinion. And like him I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe—except their conclusion that the evil qualities they see in the law make it unconstitutional.

Had the doctor defendant here, or even the nondoctor defendant, been convicted for doing nothing more than expressing opinions to persons coming to the clinic that certain contraceptive devices, medicines or practices would do them good and would be desirable, or for telling people how devices could be used, I can think of no reasons at this time why their expressions of views would not be *508 protected by the First and Fourteenth Amendments, which guarantee freedom of speech. Cf. Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1; NAACP v. Button, 371 U. S. 415. But speech is one thing; conduct and physical activities are quite another. See, e. g., Cox v. Louisiana, 379 U. S. 536, 554-555; Cox v. Louisiana, 379 U. S. 559, 563-564; id., 575-584 (concurring opinion); Giboney v. Empire Storage & Ice Co., 336 U. S. 490; cf. Reynolds v. United States,98 U. S. 145, 163-164. The two defendants here were active participants in an organization which gave physical examinations to women, advised them what kind of contraceptive devices or medicines would most likely be satisfactory for them, and then supplied the devices themselves, all for a graduated scale of fees, based on the family income. Thus these defendants admittedly engaged with others in a planned course of conduct to help people violate the Connecticut law. Merely because some speech was used in carrying on that conduct—just as in ordinary life some speech accompanies most kinds of conduct—we are not in my view justified in holding that the First Amendment forbids the State to punish their conduct. Strongly as I desire to protect all First Amendment freedoms, I am unable to stretch the Amendment so as to afford protection to the conduct of these defendants in violating the Connecticut law. What would be the constitutional fate of the law if hereafter applied to punish nothing but speech is, as I have said, quite another matter.

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth *509 Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. See e. g., New York Times Co. v. Sullivan, 376 U. S. 254, 293 (concurring opinion); cases collected in City of El Paso v. Simmons, 379 U. S. 497, 517, n. 1 (dissenting opinion); Black, The Bill of Rights, 35 N. Y. U. L. Rev. 865. For these reasons I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from *510 one or more constitutional provisions.1 I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

This brings me to the arguments made by my Brothers HARLAN, WHITE and GOLDBERG for invalidating the Connecticut law. Brothers HARLAN2 and WHITE would invalidate it by reliance on the Due Process Clause of the Fourteenth Amendment, but Brother GOLDBERG, while agreeing with Brother HARLAN, relies also on the Ninth Amendment. I have no doubt that the Connecticut law could be applied in such a way as to abridge freedom of *511 speech and press and therefore violate the First and Fourteenth Amendments. My disagreement with the Court's opinion holding that there is such a violation here is a narrow one, relating to the application of the First Amendment to the facts and circumstances of this particular case. But my disagreement with Brothers HARLAN, WHITE and GOLDBERG is more basic. I think that if properly construed neither the Due Process Clause nor the Ninth Amendment, nor both together, could under any circumstances be a proper basis for invalidating the Connecticut law. I discuss the due process and Ninth Amendment arguments together because on analysis they turn out to be the same thing—merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive.

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice."3 If these formulas based on "natural justice," or others which mean the same thing,4 are to prevail, they require judges to determine *512what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous. I readily admit that no legislative body, state or national, should pass laws that can justly be given any *513 of the invidious labels invoked as constitutional excuses to strike down state laws. But perhaps it is not too much to say that no legislative body ever does pass laws without believing that they will accomplish a sane, rational, wise and justifiable purpose. While I completely subscribe to the holding of Marbury v. Madison, 1 Cranch 137, and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of "civilized standards of conduct."5 Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination —a power which was specifically denied to federal courts by the convention that framed the Constitution.6

*514 Of the cases on which my Brothers WHITE and GOLDBERG rely so heavily, undoubtedly the reasoning of two of them supports their result here—as would that of a number of others which they do not bother to name, e. g., *514 Lochner v. New York, 198 U. S. 45, Coppage v. Kansas, 236 U. S. 1, Jay Burns Baking Co. v. Bryan, 264 U. S. 504, and Adkins v. Children's Hospital, 261 U. S. 525. The two they do cite and quote from, Meyer v. Nebraska, 262 U. S. 390, and Pierce v. Society of Sisters, 268 U. S. 510, were both decided in opinions by Mr. Justice McReynolds which elaborated the same natural law due process philosophy found in Lochner v. New York, supra, one of the cases on which he relied in Meyer, along with such other long-discredited decisions as, e. g., Adams v. Tanner, 244 U. S. 590, and Adkins v. Children's Hospital, supra. Meyer held unconstitutional, as an "arbitrary" and unreasonable interference with the right of a teacher to carry on his occupation and of parents to hire him, a *514 state law forbidding the teaching of modern foreign languages to young children in the schools.7 And in Pierce,relying principally on Meyer, Mr. Justice McReynolds said that a state law requiring that all children attend public schools interfered unconstitutionally with the property rights of private school corporations because it was an "arbitrary, unreasonable and unlawful interference" which threatened "destruction of their business and property." 268 U. S., at 536. Without expressing an opinion as to whether either of those cases reached a correct result in light of our later decisions applying the First Amendment to the State through the Fourteenth,8 I merely point out that the reasoning stated in Meyer and Pierce was the same natural law due process philosophy which many later opinions repudiated, and which I cannot accept. Brothers WHITE and GOLDBERG also cite other cases, such as NAACP v. Button, 371 U. S. 415, Shelton v. Tucker, 364 U. S. 479, and Schneider v. State,308 U. S. 147, which held that States in regulating conduct could not, consistently with the First Amendment as applied to them by the Fourteenth, pass unnecessarily broad laws which might indirectly infringe on First Amendment freedoms.9 See Brotherhood of Railroad Trainmen v. Virginia ex rel. *517 Virginia State Bar, 377 U. S. 1, 7-8.10 Brothers WHITE and GOLDBERG now apparently would start from this requirement that laws be narrowly drafted so as not to curtail free speech and assembly, and extend it limitlessly to require States to justify any law restricting "liberty" as my Brethren define "liberty." This would mean at the *518very least, I suppose, that every state criminal statute— since it must inevitably curtail "liberty" to some extent— would be suspect, and would have to be justified to this Court.11

My Brother GOLDBERG has adopted the recent discovery12 that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks *519 violates "fundamental principles of liberty and justice," or is contrary to the "traditions and [collective] conscience of our people." He also states, without proof satisfactory to me, that in making decisions on this basis judges will not consider "their personal and private notions." One may ask how they can avoid considering them. Our Court certainly has no machinery with which to take a Gallup Poll.13 And the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the "[collective] conscience of our people." Moreover, one would certainly have to look far beyond the language of the Ninth Amendment14 to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other way, and the very material quoted by my Bother GOLDBERG shows that the Ninth Amendment was intended to protect against the idea that "by enumerating particular exceptions to the grant of power" to the Federal Government, "those rights which were not singled out, were intended to be assigned into the hands of the General Government [the United States], and were consequently *520 insecure."15 That Amendment was passed, not to broaden the powers of this Court or any other department of "the General Government," but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the "[collective] conscience of our people" is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that for a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention.

I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision *521 of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.16

*522 I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause with an "arbitrary and capricious" or "shocking to the conscience" formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See, e. g., Lochner v. New York,198 U. S. 45. That formula, based on subjective considerations of "natural justice," is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all in cases like West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U. S. 236, and many other *523 opinions.17 See also Lochner v. New York, 198 U. S. 45, 74 (Holmes, J., dissenting).

In Ferguson v. Skrupa, 372 U. S. 726, 730, this Court two years ago said in an opinion joined by all the Justices but one18 that

"The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."

And only six weeks ago, without even bothering to hear argument, this Court overruled Tyson & Brother v. Banton, 273 U. S. 418, which had held state laws regulating ticket brokers to be a denial of due process of law.19 Gold *524 v. DiCarlo, 380 U. S. 520. I find April's holding hard to square with what my concurring Brethren urge today. They would reinstate the Lochner, Coppage, Adkins, Burns line of cases, cases from which this Court recoiled after the 1930's, and which had been I thought totally discredited until now. Apparently my Brethren have less quarrel with state economic regulations than former Justices of their persuasion had. But any limitation upon their using the natural law due process philosophy to strike down any state law, dealing with any activity whatever, will obviously be only self-imposed.20

In 1798, when this Court was asked to hold another Connecticut law unconstitutional, Justice Iredell said:

"[I]t has been the policy of all the American states, which have, individually, framed their state constitutions since the revolution, and of the people of the United States, when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the *525 general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice." Calder v. Bull, 3 Dall. 386, 399 (emphasis in original).

I would adhere to that constitutional philosophy in passing on this Connecticut law today. I am not persuaded to deviate from the view which I stated in 1947 in Adamson v. California, 332 U. S. 46, 90-92 (dissenting opinion):

"Since Marbury v. Madison, 1 Cranch 137, was decided, the practice has been firmly established, for better or worse, that courts can strike down legislative enactments which violate the Constitution. This process, of course, involves interpretation, and since words can have many meanings, interpretation obviously may result in contraction or extension of the original purpose of a constitutional provision, thereby affecting policy. But to pass upon the constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights and other parts of the Constitution is one thing; to invalidate statutes because of application of `natural law' deemed to be above and undefined by the Constitution is another. `In the one instance, courts proceeding within clearly marked constitutional boundaries seek to execute policies written into the Constitution; in the other, they roam at will in the limitless *526 area of their own beliefs as to reasonableness and actually select policies, a responsibility which the Constitution entrusts to the legislative representatives of the people.' Federal Power Commission v. Pipeline Co., 315 U. S. 575, 599, 601, n. 4."21(Footnotes omitted.)

The late Judge Learned Hand, after emphasizing his view that judges should not use the due process formula suggested in the concurring opinions today or any other formula like it to invalidate legislation offensive to their "personal preferences,"22 made the statement, with which I fully agree, that:

"For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I *527 knew how to choose them, which I assuredly do not."23

So far as I am concerned, Connecticut's law as applied here is not forbidden by any provision of the Federal Constitution as that Constitution was written, and I would therefore affirm.

1

 The phrase "right to privacy" appears first to have gained currency from an article written by Messrs. Warren and (later Mr. Justice) Brandeis in 1890 which urged that States should give some form of tort relief to persons whose private affairs were exploited by others. The Right to Privacy, 4 Harv. L. Rev. 193. Largely as a result of this article, some States have passed statutes creating such a cause of action, and in others state courts have done the same thing by exercising their powers as courts of common law. See generally 41 Am. Jur. 926-927. Thus the Supreme Court of Georgia, in granting a cause of action for damages to a man whose picture had been used in a newspaper advertisement without his consent, said that "A right of privacy in matters purely private is . . . derived from natural law" and that "The conclusion reached by us seems to be . . . thoroughly in accord with natural justice, with the principles of the law of every civilized nation, and especially with the elastic principles of the common law. . . ." Pavesich v. New England Life Ins. Co., 122 Ga. 190, 194, 218, 50 S. E. 68, 70, 80. Observing that "the right of privacy . . . presses for recognition here," today this Court, which I did not understand to have power to sit as a court of common law, now appears to be exalting a phrase which Warren and Brandeis used in discussing grounds for tort relief, to the level of a constitutional rule which prevents state legislatures from passing any law deemed by this Court to interfere with "privacy."

2

 Brother HARLAN'S views are spelled out at greater length in his dissenting opinion in Poe v. Ullman,367 U. S. 497, 539-555.

3

 Indeed, Brother WHITE appears to have gone beyond past pronouncements of the natural law due process theory, which at least said that the Court should exercise this unlimited power to declare state acts unconstitutional with "restraint." He now says that, instead of being presumed constitutional (see Munn v. Illinois, 94 U. S. 113, 123; compare Adkins v. Children's Hospital, 261 U. S. 525, 544), the statute here "bears a substantial burden of justification when attacked under the Fourteenth Amendment."

4

 A collection of the catchwords and catch phrases invoked by judges who would strike down under the Fourteenth Amendment laws which offend their notions of natural justice would fill many pages. Thus it has been said that this Court can forbid state action which "shocks the conscience," Rochin v. California, 342 U. S. 165, 172, sufficiently to "shock itself into the protective arms of the Constitution," Irvine v. California, 347 U. S. 128, 138 (concurring opinion). It has been urged that States may not run counter to the "decencies of civilized conduct," Rochin, supra, at 173, or "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 105, or to "those canons of decency and fairness which express the notions of justice of English-speaking peoples," Malinski v. New York, 324 U. S. 401, 417 (concurring opinion), or to "the community's sense of fair play and decency," Rochin, supra, at 173. It has been said that we must decide whether a state law is "fair, reasonable and appropriate," or is rather "an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into . . . contracts," Lochner v. New York, 198 U. S. 45, 56. States, under this philosophy, cannot act in conflict with "deeply rooted feelings of the community," Haley v. Ohio, 332 U. S. 596, 604 (separate opinion), or with "fundamental notions of fairness and justice," id., 607. See also, e. g., Wolf v. Colorado, 338 U. S. 25, 27 ("rights . . . basic to our free society"); Hebert v. Louisiana, 272 U. S. 312, 316 ("fundamental principles of liberty and justice"); Adkins v. Children's Hospital, 261 U. S. 525, 561 ("arbitrary restraint of . . . liberties"); Betts v. Brady, 316 U. S. 455, 462 ("denial of fundamental fairness, shocking to the universal sense of justice"); Poe v. Ullman, 367 U. S. 497, 539 (dissenting opinion) ("intolerable and unjustifiable"). Perhaps the clearest, frankest and briefest explanation of how this due process approach works is the statement in another case handed down today that this Court is to invoke the Due Process Clause to strike down state procedures or laws which it can "not tolerate." Linkletter v. Walker, post, p. 618, at 631.

5

 See Hand, The Bill of Rights (1958) 70:

"[J]udges are seldom content merely to annul the particular solution before them; they do not, indeed they may not, say that taking all things into consideration, the legislators' solution is too strong for the judicial stomach. On the contrary they wrap up their veto in a protective veil of adjectives such as `arbitrary,' `artificial,' `normal,' `reasonable,' `inherent,' `fundamental,' or `essential,' whose office usually, though quite innocently, is to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision." See also Rochin v. California, 342 U. S. 165, 174 (concurring opinion). But see Linkletter v. Walker, supra, n. 4, at 631.

6

 This Court held in Marbury v. Madison, 1 Cranch 137, that this Court has power to invalidate laws on the ground that they exceed the constitutional power of Congress or violate some specific prohibition of the Constitution. See also Fletcher v. Peck, 6 Cranch 87. But the Constitutional Convention did on at least two occasions reject proposals which would have given the federal judiciary a part in recommending laws or in vetoing as bad or unwise the legislation passed by the Congress. Edmund Randolph of Virginia proposed that the President

". . . and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by [original wording illegible] of the members of each branch." 1 The Records of the Federal Convention of 1787 (Farrand ed. 1911) 21.

In support of a plan of this kind James Wilson of Pennsylvania argued that:

". . . It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature." 2 id., at 73.

Nathaniel Gorham of Massachusetts "did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures." Ibid.

Elbridge Gerry of Massachusetts likewise opposed the proposal for a council of revision:

". . . He relied for his part on the Representatives of the people as the guardians of their Rights & interests. It [the proposal] was making the Expositors of the Laws, the Legislators which ought never to be done." Id., at 75.

And at another point:

"Mr. Gerry doubts whether the Judiciary ought to form a part of it [the proposed council of revision], as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. . . . It was quite foreign from the nature of ye. office to make them judges of the policy of public measures." 1 Id., at 97-98.

Madison supported the proposal on the ground that "a Check [on the legislature] is necessary." Id., at 108. John Dickinson of Delaware opposed it on the ground that "the Judges must interpret the Laws they ought not to be legislators." Ibid. The proposal for a council of revision was defeated.

The following proposal was also advanced:

"To assist the President in conducting the Public affairs there shall be a Council of State composed of the following officers—1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the U. S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union. . . ." 2 id., at 342. This proposal too was rejected.

7

 In Meyer, in the very same sentence quoted in part by my Brethren in which he asserted that the Due Process Clause gave an abstract and inviolable right "to marry, establish a home and bring up children," Mr. Justice McReynolds also asserted the heretofore discredited doctrine that the Due Process Clause prevented States from interfering with "the right of the individual to contract." 262 U. S., at 399.

8

 Compare Poe v. Ullman, 367 U. S., at 543-544 (HARLAN, J., dissenting).

9

 The Court has also said that in view of the Fourteenth Amendment's major purpose of eliminating state-enforced racial discrimination, this Court will scrutinize carefully any law embodying a racial classification to make sure that it does not deny equal protection of the laws. See McLaughlin v. Florida,379 U. S. 184.

10

 None of the other cases decided in the past 25 years which Brothers WHITE and GOLDBERG cite can justly be read as holding that judges have power to use a natural law due process formula to strike down all state laws which they think are unwise, dangerous, or irrational. Prince v. Massachusetts, 321 U. S. 158, upheld a state law forbidding minors from selling publications on the streets. Kent v. Dulles,357 U. S. 116, recognized the power of Congress to restrict travel outside the country so long as it accorded persons the procedural safeguards of due process and did not violate any other specific constitutional provision. Schware v. Board of Bar Examiners, 353 U. S. 232, held simply that a State could not, consistently with due process, refuse a lawyer a license to practice law on the basis of a finding that he was morally unfit when there was no evidence in the record, 353 U. S., at 246-247, to support such a finding. Compare Thompson v. City of Louisville, 362 U. S. 199, in which the Court relied in part on Schware. See also Konigsberg v. State Bar, 353 U. S. 252. And Bolling v. Sharpe, 347 U. S. 497, merely recognized what had been the understanding from the beginning of the country, an understanding shared by many of the draftsmen of the Fourteenth Amendment, that the whole Bill of Rights, including the Due Process Clause of the Fifth Amendment, was a guarantee that all persons would receive equal treatment under the law. Compare Chambers v. Florida, 309 U. S. 227, 240-241. With one exception, the other modern cases relied on by my Brethren were decided either solely under the Equal Protection Clause of the Fourteenth Amendment or under the First Amendment, made applicable to the States by the Fourteenth, some of the latter group involving the right of association which this Court has held to be a part of the rights of speech, press and assembly guaranteed by the First Amendment. As for Aptheker v. Secretary of State, 378 U. S. 500, I am compelled to say that if that decision was written or intended to bring about the abrupt and drastic reversal in the course of constitutional adjudication which is now attributed to it, the change was certainly made in a very quiet and unprovocative manner, without any attempt to justify it.

11

 Compare Adkins v. Children's Hospital, 261 U. S. 525, 568 (Holmes, J., dissenting):

"The earlier decisions upon the same words [the Due Process Clause] in the Fourteenth Amendment began within our memory and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous generality was expanded into the dogma, Liberty of Contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts."

12

 See Patterson, The Forgotten Ninth Amendment (1955). Mr. Patterson urges that the Ninth Amendment be used to protect unspecified "natural and inalienable rights." P. 4. The Introduction by Roscoe Pound states that "there is a marked revival of natural law ideas throughout the world. Interest in the Ninth Amendment is a symptom of that revival." P. iii.

In Redlich, Are There "Certain Rights . . . Retained by the People"?, 37 N. Y. U. L. Rev. 787, Professor Redlich, in advocating reliance on the Ninth and Tenth Amendments to invalidate the Connecticut law before us, frankly states:

"But for one who feels that the marriage relationship should be beyond the reach of a state law forbidding the use of contraceptives, the birth control case poses a troublesome and challenging problem of constitutional interpretation. He may find himself saying, `The law is unconstitutional—but why?' There are two possible paths to travel in finding the answer. One is to revert to a frankly flexible due process concept even on matters that do not involve specific constitutional prohibitions. The other is to attempt to evolve a new constitutional framework within which to meet this and similar problems which are likely to arise." Id., at 798.

13

 Of course one cannot be oblivious to the fact that Mr. Gallup has already published the results of a poll which he says show that 46% of the people in this country believe schools should teach about birth control. Washington Post, May 21, 1965, p. 2, col. 1. I can hardly believe, however, that Brother GOLDBERG would view 46% of the persons polled as so overwhelming a proportion that this Court may now rely on it to declare that the Connecticut law infringes "fundamental" rights, and overrule the long-standing view of the people of Connecticut expressed through their elected representatives.

14

 U. S. Const., Amend. IX, provides:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

15

 1 Annals of Congress 439. See also II Story, Commentaries on the Constitution of the United States (5th ed. 1891): "This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies." Id., at 651 (footnote omitted).

16

 Justice Holmes in one of his last dissents, written in reply to Mr. Justice McReynolds' opinion for the Court in Baldwin v. Missouri, 281 U. S. 586, solemnly warned against a due process formula apparently approved by my concurring Brethren today. He said:

"I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words `due process of law,' if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the State may pass." 281 U. S., at 595. See 2 Holmes-Pollock Letters (Howe ed. 1941) 267-268.

17

 E. g., in Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423, this Court held that "Our recent decisions make plain that we do not sit as a superlegislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare."

Compare Gardner v. Massachusetts, 305 U. S. 559, which the Court today apparently overrules, which held that a challenge under the Federal Constitution to a state law forbidding the sale or furnishing of contraceptives did not raise a substantial federal question.

18

 Brother HARLAN, who has consistently stated his belief in the power of courts to strike down laws which they consider arbitrary or unreasonable, see, e. g., Poe v. Ullman, 367 U. S. 497, 539-555 (dissenting opinion), did not join the Court's opinion in Ferguson v. Skrupa.

19

 Justice Holmes, dissenting in Tyson, said:

"I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain." 273 U. S., at 446.

20

 Compare Nicchia v. New York, 254 U. S. 228, 231, upholding a New York dog-licensing statute on the ground that it did not "deprive dog owners of liberty without due process of law." And as I said concurring in Rochin v. California, 342 U. S. 165, 175, "I believe that faithful adherence to the specific guarantees in the Bill of Rights insures a more permanent protection of individual liberty than that which can be afforded by the nebulous standards" urged by my concurring Brethren today.

21

 Gideon v. Wainwright, 372 U. S. 335, and similar cases applying specific Bill of Rights provisions to the States do not in my view stand for the proposition that this Court can rely on its own concept of "ordered liberty" or "shocking the conscience" or natural law to decide what laws it will permit state legislatures to enact. Gideon in applying to state prosecutions the Sixth Amendment's guarantee of right to counsel followed Palko v. Connecticut, 302 U. S. 319, which had held that specific provisions of the Bill of Rights, rather than the Bill of Rights as a whole, would be selectively applied to the States. While expressing my own belief (not shared by MR. JUSTICE STEWART) that all the provisions of the Bill of Rights were made applicable to the States by the Fourteenth Amendment, in my dissent in Adamson v. California, 332 U. S. 46, 89, I also said:

"If the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the States, or the Twining rule applying none of them, I would choose the Palko selective process."

Gideon and similar cases merely followed the Palko rule, which in Adamson I agreed to follow if necessary to make Bill of Rights safeguards applicable to the States. See also Pointer v. Texas, 380 U. S. 400; Malloy v. Hogan, 378 U. S. 1.

22

 Hand, The Bill of Rights (1958) 70. See note 5, supra. See generally id., at 35-45.

23

 Id., at 73. While Judge Hand condemned as unjustified the invalidation of state laws under the natural law due process formula, see id., at 35-45, he also expressed the view that this Court in a number of cases had gone too far in holding legislation to be in violation of specific guarantees of the Bill of Rights. Although I agree with his criticism of use of the due process formula, I do not agree with all the views he expressed about construing the specific guarantees of the Bill of Rights.

MR. JUSTICE STEWART, whom MR. JUSTICE BLACK joins, dissenting.

Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

In the course of its opinion the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. *528 But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law.

We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the "guide" in this case. With that much I agree. There is no claim that this law, duly enacted by the Connecticut Legislature is unconstitutionally vague. There is no claim that the appellants were denied any of the elements of procedural due process at their trial, so as to make their convictions constitutionally invalid. And, as the Court says, the day has long passed since the Due Process Clause was regarded as a proper instrument for determining "the wisdom, need, and propriety" of state laws. Compare Lochner v. New York, 198 U. S. 45, with Ferguson v. Skrupa, 372 U. S. 726. My Brothers HARLAN and WHITE to the contrary, "[w]e have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." Ferguson v. Skrupa, supra, at 730.

As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States.1 It has *529 not even been argued that this is a law "respecting an establishment of religion, or prohibiting the free exercise thereof."2 And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of "the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."3 No soldier has been quartered in any house.4 There has been no search, and no seizure.5 Nobody has been compelled to be a witness against himself.6

The Court also quotes the Ninth Amendment, and my Brother GOLDBERG'S concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby,312 U. S. 100, 124, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that *530 the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annual a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.

What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.7

At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States." It is the essence of judicial *531 duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.8

1

 The Amendments in question were, as everyone knows, originally adopted as limitations upon the power of the newly created Federal Government, not as limitation upon the powers of the individual States. But the Court has held that many of the provisions of the first eight amendments are fully embraced by the Fourteenth Amendment as limitations upon state action, and some members of the Court have held the view that the adoption of the Fourteenth Amendment made every provision of the first eight amendments fully applicable against the States. See Adamson v. California, 332 U. S. 46, 68 (dissenting opinion of MR. JUSTICE BLACK).

2

 U. S. Constitution, Amendment I. To be sure, the injunction contained in the Connecticut statute coincides with the doctrine of certain religious faiths. But if that were enough to invalidate a law under the provisions of the First Amendment relating to religion, then most criminal laws would be invalidated. See, e. g., the Ten Commandments. The Bible, Exodus 20:2-17 (King James).

3

 U. S. Constitution, Amendment I. If all the appellants had done was to advise people that they thought the use of contraceptives was desirable, or even to counsel their use, the appellants would, of course, have a substantial First Amendment claim. But their activities went far beyond mere advocacy. They prescribed specific contraceptive devices and furnished patients with the prescribed contraceptive materials.

4

 U. S. Constitution, Amendment III.

5

 U. S. Constitution, Amendment IV.

 U. S. Constitution, Amendment V.

7

 Cases like Shelton v. Tucker, 364 U. S. 479 and Bates v. Little Rock, 361 U. S. 516, relied upon in the concurring opinions today, dealt with true First Amendment rights of association and are wholly inapposite here. See also, e. g., NAACP v. Alabama, 357 U. S. 449; Edwards v. South Carolina, 372 U. S. 229. Our decision in McLaughlin v. Florida, 379 U. S. 184, is equally far afield. That case held invalid under the Equal Protection Clause, a state criminal law which discriminated against Negroes.

The Court does not say how far the new constitutional right of privacy announced today extends. See, e. g., Mueller, Legal Regulation of Sexual Conduct, at 127; Ploscowe, Sex and the Law, at 189. I suppose, however, that even after today a State can constitutionally still punish at least some offenses which are not committed in public.

8

 See Reynolds v. Sims, 377 U. S. 533, 562. The Connecticut House of Representatives recently passed a bill (House Bill No. 2462) repealing the birth control law. The State Senate has apparently not yet acted on the measure, and today is relieved of that responsibility by the Court. New Haven Journal-Courier, Wed., May 19, 1965, p. 1, col. 4, and p. 13, col. 7.

Jane Roe, et al., Appellants, v. Henry Wade.

Argued Dec. 13, 1971.

Reargued Oct. 11, 1972.

Decided Jan. 22, 1973.

Rehearing Denied Feb. 26, 1973.

See 410 U.S. 959, 93 S.Ct. 1409.

Syllabus

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford. Held:

1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone, review is not foreclose when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123.

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.

(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving pregnancy, which is 'capable of repetition, yet evading review,' is an exception to the usual federal rule that an actual controversy*114 must exist at review stages and not simply when the action is initiated. Pp. 124-125.

(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good-faith state prosecutions pending against him. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688. Pp. 125-127.

(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy. Pp. 127-129.

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term. Pp. 147-164.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163-164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163-164.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164—165.

4. The State may define the term 'physician' to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.

5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully recognize the Court's ruling*115 that the Texas criminal abortion statutes are unconstitutional. P. 166.

314 F.Supp. 1217, affirmed in part and reversed in part.

Sarah R. Weddington, Austin, Tex., for appellants.

Robert C. Flowers, Asst. Atty. Gen. of Texas, Austin, Tex., for appellee on reargument.

Jay Floyd, Asst. Atty. Gen., Austin, Tex., for appellee on original argument.

*116Mr. Justice BLACKMUN delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we*117 have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905):

'(The Constitution) is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.'

I

The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code,1 Vernon's Ann.P.C. These make it a crime to 'procure an abortion,' as therein*118 defined, or to attempt one, except with respect to 'an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.' Similar statutes are in existence in a majority of the States.2*119 Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 (1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by 'medical advice for the purpose of saving the life of the mother.'3*120

II

Jane Roe,4 a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.

Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion 'performed by a competent, licensed physician, under safe, clinical conditions'; that she was unable to get a 'legal' abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue 'on behalf of herself and all other women' similarly situated.

James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and*121 that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

John and Mary Doe,5 a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a 'neural-chemical' disorder; that her physician had 'advised her to avoid pregnancy until such time as her condition has materially improved' (although a pregnancy at the present time would not present 'a serious risk' to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue 'on behalf of themselves and all couples similarly situated.'

The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant,*122 and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the 'fundamental right of single women and married persons to choose where to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,' and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does' complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F.Supp. 1217, 1225 (N.D.Tex.1970).

The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. § 1253, have appealed to this Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941, 91 S.Ct. 1610, 29 L.Ed. 108 (1971).

*123III

It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970), and Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970), are to the effect that § 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is property here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73; 80-81, 80 S.Ct. 568, 573-574, 4 L.Ed.2d 568 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201.

IV

We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that 'personal stake in the outcome of the controversy,' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that insures that 'the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,' Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972)? And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court's granting relief to him as a plaintiff-intervenor?

*124A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.

Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 8380-839 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (D.C.Kan. 1972). See Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1951). Indeed, we do not read the appellee's brief as really asserting anything to the contrary. The 'logical nexus between the status asserted and the claim sought to be adjudicated,' Flast v. Cohen, 392 U.S., at 102, 88 S.Ct., at 1953, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), are both present.

The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970,6 or on the following June 17 when the court's opinion and judgment were filed. And he suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy.

*125The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be 'capable of repetition, yet evading review.' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 350, 351, 21 L.Ed.2d 325 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303 (1953).

We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.

B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his complaint that he:

'(I)n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs.

*126James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with abortion . . .'

In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.

Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although he stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a 'potential future defendant' and to assert only the latter for standing purposes here.

We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v.

*127Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). See also Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). We note, in passing, that Younger and its companion cases were decided after the three-judge District Court decision in this case.

Dr. Hallford's complaint in intervention, therefore, is to be dismissed.7 He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.

C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Does' posture.

Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for 'other highly personal reasons.' But they 'fear . . . they may face the prospect of becoming*128 parents.' And if pregnancy ensues, they 'would want to terminate' it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently.

We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged 'detrimental effect upon (their) marital happiness' because they are forced to 'the choice of refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy.' Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes.

This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does' estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Younger v. Harris, 401 U.S., at 41-42, 91 S.Ct., at 749; Golden v. Zwickler, 394 U.S., at 109-110, 89 S.Ct., at 960; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of those resolved otherwise in the cases that the Does urge upon us, namely, investment Co. Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970);*129 and Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). See also Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915).

The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.

V

The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal 'liberty' embodied in the Fourteenth Amendment's Due Process Clause; or in personal marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d 349 (White, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.

VI

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.

*1301. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.8 We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era,9 and that 'it was resorted to without scruple.'10 The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable.11Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.12

2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B.C.), who has been described*131 as the Father of Medicine, the 'wisest and the greatest practitioner of his art,' and the 'most important and most complete medical personality of antiquity,' who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past?13 The Oath varies somewhat according to the particular translation, but in any translation the content is clear: 'I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,'14 or 'I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.'15

Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory:16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, 'echoes Pythagorean doctrines,'*132 and '(i)n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity.'17

Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.D. 130-200) 'give evidence of the violation of almost every one of its injunctions.'18 But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Phthagorean ethic. The Oath 'became the nucleus of all medical ethics' and 'was applauded as the embodiment of truth.' Thus, suggests Dr. Edelstein, it is 'a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.'19

This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and reversed statement of medical ethics.

3. The common law. It is undisputed that at common law, abortion performed before 'quickening'-the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy20-was not an indictable offense.21 The ab*133sence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became 'formed' or recognizably human, or in terms of when a 'person' came into being, that is, infused with a 'soul' or 'animated.' A loose concensus evolved in early English law that these events occurred at some point between conception and live birth.22 This was 'mediate animation.' Although*134 Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.

Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.23 But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited *135 passage, Coke took the position that abortion of a woman 'quick with childe' is 'a great misprision, and no murder.'24 Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), 'modern law' took a less severe view.25 A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.26 This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,27 others followed Coke in stating that abor*136tion of a quick fetus was a 'misprision,' a term they translated to mean 'misdemeanor.'28 That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.

4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but in § 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the 'quickening' distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85, § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of 'the life of a child capable of being born alive.' It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be*137 found guilty of the offense 'unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.'

A seemingly notable development in the English law was the case of Rex v. Bourne, (1939) 1 K.B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge MacNaghten referred to the 1929 Act, and observed that that Act related to 'the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature.' Id., at 691. He concluded that the 1861 Act's use of the word 'unlawfully,' imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother's life in the 1861 Act. He then construed the phrase 'preserving the life of the mother' broadly, that is, 'in a reasonable sense,' to include a serious and permanent threat to the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. Id., at 693-694. The jury did acquit.

Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) 'that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,' or (b) 'that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as*138 to be seriously handicapped.' The Act also provides that, in making this determination, 'account may be taken of the pregnant woman's actual or reasonably foreseeable environment.' It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion 'is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.'

5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman 'quick with child.'29 The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860.30 In 1828, New York enacted legislation31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it 'shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.' By 1840, when Texas had received the common law,32 only eight American States*139 had statutes dealing with abortion.33 It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.

Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health. 35 Three States permitted abortions that were not 'unlawfully' performed or that were not 'without lawful justification,' leaving interpretation of those standards to the courts.36 In*140 the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3,37 set forth as Appendix B to the opinion in Doe v. Bolton, 410 U.S. 205, 93 S.Ct. 754.

It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the oppor*141tunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.

An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans. of the Am.Med.Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion 'with a view to its general suppression.' It deplored abortion and its frequency and it listed three causes of 'this general demoralization':

'The first of these causes is a wide-spread popular ignorance of the true character of the crime-a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.

'The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life. . . .

'The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it,*142 and to its life as yet denies all protection.' Id., at 75-76.

The Committee then offered, and the Association adopted, resolutions protesting 'against such unwarrantable destruction of human life,' calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies 'in pressing the subject.' Id., at 28, 78.

In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, 'We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.' 22 Trans. of the Am.Med.Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it 'be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child-if that be possible,' and calling 'the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females-aye, and men also, on this important question.'

Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is 'documented medical evidence' of a threat to the health or life of the mother, or that the child 'may be born with incapacitating physical deformity or mental deficiency,' or that a pregnancy 'resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the*143 patient,' two other physicians 'chosen because of their recognized professional competency have examined the patient and have concurred in writing,' and the procedure 'is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.' The providing of medical information by physicians to state legislatures in their consideration of legislation regarding therapeutic abortion was 'to be considered consistent with the principles of ethics of the American Medical Association.' This recommendation was adopted by the House of Delegates. Proceedings of the AMA House of Delegates 40-51 (June 1967).

In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference committee noted 'polarization of the medical profession on this controversial issue'; division among those who had testified; a difference of opinion among AMA councils and committees; 'the remarkable shift in testimony' in six months, felt to be influenced 'by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available;' and a feeling 'that this trend will continue.' On June 25, 1970, the House of Delegates adopted preambles and most of the resolutions proposed by the reference committee. The preambles emphasized 'the best interests of the patient,' 'sound clinical judgment,' and 'informed patient consent,' in contrast to 'mere acquiescence to the patient's demand.' The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law, and that no party to the procedure should be required to violate personally held moral principles.38Proceedings*144 of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary opinion.39

7. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number:

'a. Rapid and simple abortion referral must be readily available through state and local public*145 health departments, medical societies, or other non-profit organizations.

'b. An important function of counseling should be to simplify and expedite the provision of abortion services; if should not delay the obtaining of these services.

'c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications and not on a routine basis.

'd. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.

'e. Contraception and/or sterilization should be discussed with each abortion patient.' Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396 (1971).

Among factors pertinent to life and health risks associated with abortion were three that 'are recognized as important':

'a. the skill of the physician,

'b. the environment in which the abortion is performed, and above all

'c. The duration of pregnancy, as determined by uterine size and confirmed by menstrual history.' Id., at 397.

It was said that 'a well-equipped hospital' offers more protection 'to cope with unforeseen difficulties than an office or clinic without such resources. . . . The factor of gestational age is of overriding importance.' Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first tri*146mester, abortion in the hospital with or without overnight stay 'is probably the safest practice.' An abortion in an extramural facility, however, is an acceptable alternative 'provided arrangements exist in advance to admit patients promptly if unforeseen complications develop.' Standards for an abortion facility were listed. It was said that at present abortions should be performed by physicians or osteopaths who are licensed to practice and who have 'adequate training.' Id., at 398.

8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. 58 A.B.A.J. 380 (1972). We set forth the Act in full in the margin.40 The*147 Conference has appended an enlightening Prefatory Note.41

VII

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.

*148It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.42 The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.

A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman.43 This was particularly true prior to the*149 development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.

Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.44 Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain.

*150The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal 'abortion mills' strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy,

The third reason is the State's interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. 45 The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to life birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

*151Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.46 Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose.47 The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.48 Proponents of this view point out that in many States, including Texas,49 by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.50 They claim that adoption of the 'quickening' distinction through received common*152 law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.

It is with these interests, and the weight to be attached to them, that this case is concerned.

VIII

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889 (1968), Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485, 85 S.Ct., at 1681-1682; in the Ninth Amendment, id., at 486, 85 S.Ct. at 1682 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454, 92 S.Ct., at 1038-1039; id., at 460, 463-*153465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The*154 Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 800 (D.C.Conn.1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (D.C.Conn.1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (N.D.Ga.1970), appeal decided today, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; Doe v. Scott, 321 F.Supp. 1385 (N.D.Ill.1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (D.C.Kan.1972); YWCA v. Kugler, 342 F.Supp. 1048 (D.C.N.J.1972); Babbitz v. McCann,*155 310 F.Supp. 293 (E.D.Wis.1970), appeal dismissed, 400 U.S. 1, 91 S.Ct. 12, 27 L.Ed.2d 1 (1970); People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970); State v. Barquet, 262 So.2d 431 (Fla.1972).

Others have sustained state statutes. Crossen v. Attorney General, 344 F.Supp. 587 (E.D.Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (E.D.La.1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (W.D.N.C.1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Doe v. Rampton, 366 F.Supp. 189 (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, Ind., 285 N.E.2d 265 (1972); Spears v. State, 257 So.2d 876 (Miss.1972); State v. Munson, S.D., 201 N.W.2d 123 (1972), appeal docketed, No. 72-631.

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at 1682; Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308, 60 S.Ct. 900, 904-905, 84 L.Ed. 1213 (1940); see*156 Eisenstadt v. Baird, 405 U.S., at 460, 463-464, 92 S.Ct., at 1042, 1043-1044 (White, J., concurring in result).

In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable.

IX

The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented 'several compelling justifications for state presence in the area of abortions,' the statutes outstripped these justifications and swept 'far beyond any areas of compelling state interest.' 314 F.Supp., at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.

A. The appellee and certain amici argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses,*157 for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.51 On the other hand, the appellee conceded on reargument52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define 'person' in so many words. Section 1 of the Fourteenth Amendment contains three references to 'person.' The first, in defining 'citizens,' speaks of 'persons born or naturalized in the United States.' The word also appears both in the Due Process Clause and in the Equal Protection Clause. 'Person' is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art, I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3;53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emoulument Clause, Art, I, § 9, cl. 8; in the Electros provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.54*158 All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn.55 This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (W.D.Pa.1972); Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d 194, 335 N.Y.S.2d 390, 286 N.E.2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F.Supp. 224 (D.C.Conn.1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, Ind., 285 N.E.2d, at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961); Keeler v. Superior Court, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 (1970); State v. Dickinson, 28*159 Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.

This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.

B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

*160It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics.56 It appears to be the predominant, though not the unanimous, attitude of the Jewish faith.57 It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.58 As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes 'viable,' that is, potentially able to live outside the mother's womb, albeit with artificial aid.59 Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.60 The Aristotelian theory of 'mediate animation,' that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this 'ensoulment' theory from those in the Church who would recognize the existence of life from*161 the moment of conception.61 The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a 'process' over time, rather than an event, and by new medical techniques such as menstrual extraction, the 'morning-after' pill, implantation of embryos, artificial insemination, and even artificial wombs.62

In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before life birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon life birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive.63 That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few*162 courts have squarely so held.64 In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. 65 Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem.66 Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

X

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a non-resident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches*163 term and, at a point during pregnancy, each becomes 'compelling.'

With respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this 'compelling' point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion*164 during that period, except when it is necessary to preserve the life or health of the mother.

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those 'procured or attempted by medical advice for the purpose of saving the life of the mother,' sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, 'saving' the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402 U.S., at 67-72, 91 S.Ct., at 1296-1299.

XI

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life*165 may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

2. The State may define the term 'physician,' as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.

In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together.67

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important*166 state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.

XII

Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.

Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U.S 241, 252-255, 88 S.Ct. 391, 397-399, 19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). We are not dealing with a statute that, on its face, appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris, 401 U.S., at 50, 91 S.Ct., at 753.

We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional.

The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford's complaint in intervention is dismissed. In all other respects, the judg*167ment of the District Court is affirmed. Costs are allowed to the appellee.

It is so ordered.

Affirmed in part and reversed in part.

1

'Article 1191. Abortion

'If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By 'abortion' is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.

'Art. 1192. Furnishing the means

'Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.

'Art. 1193. Attempt at abortion

'If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.

'Art. 1194. Murder in producing abortion

'If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.'

'Art. 1196. By medical advice

'Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.'

The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not attacked here, reads:

'Art. 1195. Destroying unborn child

'Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.'

2

Ariz.Rev.Stat.Ann. § 13-211 (1956); Conn.Pub.Act No. 1 (May 1972 special session) (in 4 Conn.Leg.Serv. 677 (1972)), and Conn.Gen.Stat.Rev. §§ 53-29, 53-30 (1968) (or unborn child); Idaho Code § 18-601 (1948); Ill.Rev.Stat., c. 38, § 21-1 (1971); Ind.Code § 35-1-58-1 (1971); Iowa Code § 701.1 (1971); Ky.Rev.Stat. § 436.020 (1962); LaRev.Stat. § 37:1285(6) (1964) (loss of medical license) (but see § 14-87 (Supp.1972) containing no exception for the life of the mother under the criminal statute); Me.Rev.Stat.Ann., Tit. 17, § 51 (1964); Mass.Gen.Laws Ann., c. 272, § 19 (1970) (using the term 'unlawfully,' construed to exclude an abortion to save the mother's life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N.E.2d 264 (1969)); Mich.Comp.Laws § 750.14 (1948); Minn.Stat. § 617.18 (1971); Mo.Rev.Stat. § 559.100 (1969); Mont.Rev.Codes Ann. § 94-401 (1969); Neb.Rev.Stat. § 28-405 (1964); Nev.Rev.Stat. § 200.220 (1967); N.H.Rev.Stat.Ann. § 585:13 (1955); N.J.Stat.Ann. § 2A:87-1 (1969) ('without lawful justification'); N.D.Cent.Code §§ 12-25-01, 12-25-02 (1960); Ohio Rev.Code Ann. § 2901.16 (1953); Okla.Stat.Ann., Tit. 21, § 861 (1972-1973 Supp.); Pa.Stat.Ann., Tit. 18, §§ 4718, 4719 (1963) ('unlawful'); R.I.Gen.Laws Ann. § 11-3-1 (1969); S.D.Comp.Laws Ann. § 22-17-1 (1967); Tenn.Code Ann. §§ 39-301, 39-302 (1956); Utah Code Ann. §§ 76-2-1, 76-2-2 (1953); Vt.Stat.Ann., Tit. 13, § 101 (1958); W.Va.Code Ann. § 61-2-8 (1966); Wis.Stat. § 940.04 (1969); Wyo.Stat.Ann. §§ 6-77, 6-78 (1957).

3

Long ago, a suggestion was made that the Texas statutes were unconstitutionally vague because of definitional deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion peremptorily, saying only,

'It is also insisted in the motion in arrest of judgment that the statute is unconstitutional and void, in that it does not sufficiently define or describe the offense of abortion. We do not concur with counsel in respect to this question.' Jackson v. State, 55 Tex.Cr.R. 79, 89, 115 S.W. 262, 268 (1908).

The same court recently has held again that the State's abortion statutes are not unconstitutionally vague or overbroad. Thompson v. State, 493 S.W.2d 913 (1971), appeal docketed, No. 71-1200. The court held that 'the State of Texas has a compelling interest to protect fetal life'; that Art. 1191 'is designed to protect fetal life'; that the Texas homicide statutes, particularly Act. 1205 of the Penal Code, are intended to protect a person 'in existence by actual birth' and thereby implicitly recognize other human life that is not 'in existence by actual birth'; that the definition of human life is for the legislature and not the courts; that Art. 11196 'is more definite that the District of Columbia statute upheld in (United States v.) Vuitch' (402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601); and that the Texas statute 'is not vague and indefinite or overbroad.' A physician's abortion conviction was affirmed.

In 493 S.W.2d, at 920 n. 2, the court observed that any issue as to the burden of proof under the exemption of Art. 1196 'is not before us.' But see Veevers v. State, 172 Tex.Cr.R. 162, 168-169, 354 S.W.2d 161, 166-167 (1962). Cf. United States v. Vuitch, 402 U.S. 62, 69-71, 91 S.Ct. 1294, 1298-1299, 28 L.Ed.2d 601 (1971).

4

The name is a pseudonym.

5

These names are pseudonyms.

6

The appellee twice states in his brief that the hearing before the District Court was held on July 22, 1970. Brief for Appellee 13. The docket entries, App. 2, and the transcript, App. 76, reveal this to be an error. The July date appears to be the time of the reporter's transcription. See App. 77.

7

We need not consider what different result, if any, would follow if Dr. Hallford's intervention were on behalf of a class. His complaint in intervention does not purport to assert a class suit and makes no reference to any class apart from an allegation that he 'and others similarly situated' must necessarily guess at the meaning of Art. 1196. His application for leave to intervene goes somewhat further, for it asserts that plaintiff Roe does not adequately protect the interest of the doctor 'and the class of people who are physicians . . . (and) the class of people who are . . . patients . . ..' The leave application, however, is not the complaint. Despite the District Court's statement to the contrary, 314 F.Supp., at 1225, we fail to perceive the essentials of a class suit in the Hallford complaint.

8

A Castiglioni, A. History of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor (hereinafter Castiglioni).

9

J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed. 1950) (hereinafter Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter Lader); K. Niswander, Medical Abortion Practices in the United States, in Abortion and the Law 37, 38-40 (D. Smith ed. 1967); G. Williams, The Sanctity of Life and the Criminal Law 148 (1957) (hereinafter Williams); J. Noonan, An Almost Absolute Value in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed. 1970) (hereinafter Noonan); Quay, Justifiable Abortion-Medical and Legal Foundations, (pt. 2), 49 Geo.L.J. 395, 406-422 (1961) (hereinafter Quay).

10

L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see Castiglioni 227.

11

Edelstein 12; Ricci 113-114, 118-119; Noonan 5.

12

Edelstein 13-14.

13

Castiglioni 148.

14

Id., at 154.

15

Edelstein 3.

16

Id., at 12, 15-18.

17

Id., at 18; Lader 76.

18

Edelstein 63.

19

Id., at 64.

20

Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).

21

E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31, § 16 (4th ed. 1762); 1 W. Blackstone, Commentaries *129-130; M. Hale, Pleas of the Crown 433 (1st Amer. ed. 1847). For discussions of the role of the quickening concept in English common law, see Lader 78; Noonan 223-226; Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality (pt. 1), 14 N. Y. L. F. 411, 418-428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the Law, 59 J. Crim. L. C. & P. S. 84 (1968) (hereinafter Stern); Quay 430-432; Williams 152.

22

*50Early philosophers believed that the embryo or fetus did not become formed and begin to live until at least 40 days after conception for a male, and 80 to 90 days for a female. See, for example, Aristotle, Hist.Anim. 7.3.583b; Gen.Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat.Puer., No. 10. Aristotle's thinking derived from his three-stage theory of life: vegetable, animal, rational. The vegetable stage was reached at conception, the animal at 'animation,' and the rational soon after live birth. This theory, together with the 40/80 day view, came to be accepted by early Christian thinkers.

The theological debate was reflected in the writings of St. Augustine, who made a distinction between embryo inanimatus, not yet endowed with a soul, and embryo animatus. He may have drawn upon Exodus 21:22. At one point, however, he expressed the view that human powers cannot determine the point during fetal development at which the critical change occurs. See Augustine, De Origine Animae 4.4 (Pub.Law 44.527). See also W. Reany, The Creation of the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law Studies No. 162, Washington, D.C., 1942).

Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay 426-427. Later, Augustine on abortion was incorporated by Gratian into the Decretum, published about 1140. Decretum Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122, 1123 (A. Friedberg, 2d ed. 1879). This Decretal and the Decretals that followed were recognized as the definitive body of canon law until the new Code of 1917.

For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan 20-26; Quay 426-430; see also J. Noonan, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965).

23

Bracton took the position that abortion by blow or poison was homicide 'if the foetus be already formed and animated, and particularly if it be animated.' 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879), or, as a later translation puts it, 'if the foetus is already formed or quickened, especially if it is quickened,' 2 H. Bracton, On the Laws and Customs of England 341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61 (Book 1, c. 23) (Selden Society ed. 1955).

24

E. Coke, Institutes III *50.

25

1 W. Blackstone, Commentaries *129-130.

26

*129Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N.Y.L.F. 335 (1971) (hereinafter Means II). The author examines the two principal precedents cited marginally by Coke, both contrary to his dictum, and traces the treatment of these and other cases by earlier commentators. He concludes that Coke, who himself participated as an advocate in an abortion case in 1601, may have intentionally misstated the law. The author even suggests a reason: Coke's strong feelings against abortion, coupled with his determination to assert common-law (secular) jurisdiction to assess penalties for an offense that traditionally had been an exclusively ecclesiastical or canon-law crime. See also Lader 78-79, who notes that some scholars doubt that the common law ever was applied to abortion; that the English ecclesiastical courts seem to have lost interest in the problem after 1527; and that the preamble to the English legislation of 1803, 43 Geo. 3, c. 58, § 1, referred to in the text, infra, at 136, states that 'no adequate means have been hitherto provided for the prevention and punishment of such offenses.'

27

Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N.J.L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N.W. 611, 612 (1907); Gray v. State, 77 Tex.Cr.R. 221, 224, 178 S.W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56 S.E.2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C. 630, 632 (1880).

28

See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N.Y. 86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887).

29

Conn.Stat., Tit. 20, § 14 (1821).

30

Conn.Pub.Acts, c. 71, § 1 (1860).

31

N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6, § 21, p. 694 (1829).

32

Act of Jan. 20, 1840, § 1, set forth in 2 H. Gammel, Laws of Texas 177-178 (1898); see Grigsby v. Reib, 105 Tex. 597, 600, 153 S.W. 1124, 1125 (1913).

33

The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern 85-86; and Means II 375-376.

34

Criminal abortion statutes in effect in the States as of 1961, together with historical statutory development and important judicial interpretations of the state statutes, are cited and quoted in Quay 447-520. See Comment, A Survey of the Present Statutory and Case Law on Abortion: The Contradictions and the Problems, 1972 U.Ill.L.F. 177, 179, classifying the abortion statutes and listing 25 States as permitting abortion only if necessary to save or preserve the mother's life.

35

Ala.Code, Tit. 14, § 9 (1958); D.C.Code Ann. § 22-201 (1967).

36

Mass.Gen.Laws Ann., c. 272, § 19 (1970); N.J.Stat.Ann. § 2A:87-1 (1969); Pa.Stat.Ann., Tit. 18, §§ 4718, 4719 (1963).

37

Fourteen States have adopted some form of the ALI statute. See Ark.Stat.Ann. §§ 41-303 to 41-310 (Supp.1971); Calif. Health & Safety Code §§ 25950-25955.5 (Supp.1972); Colo.Rev.Stat.Ann. §§ 40-2-50 to 40-2-53 (Cum.Supp.1967); Del.Code Ann., Tit. 24, §§ 1790-1793 (Supp.1972); Florida Law of Apr. 13, 1972, c. 72-196, 1972 Fla.Sess.Law Serv., pp. 380-382; Ga.Code §§ 26-1201 to 26-1203 (1972); Kan.Stat.Ann. § 21-3407 (Supp.1971); Md.Ann.Code, Art. 43, §§ 137-139 (1971); Miss.Code Ann. § 2223 (Supp.1972); N.M.Stat.Ann. §§ 40A-5-1 to 40A-5-3 (1972); N.C.Gen.Stat. § 14-45.1 (Supp.1971); Ore.Rev.Stat. §§ 435.405 to 435.495 (1971); S.C.Code Ann. §§ 16-82 to 16-89 (1962 and Supp.1971); Va.Code Ann. §§ 18.1-62 to 18.1-62.3 (Supp.1972). Mr. Justice Clark described some of these States as having 'led the way.' Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L.A.) L.Rev. 1, 11 (1969).

By the end of 1970, four other States had repealed criminal penalties for abortions performed in early pregnancy by a licensed physician, subject to stated procedural and health requirements. Alaska Stat. § 11.15.060 (1970); Haw.Rev.Stat. § 453-16 (Supp.1971); N.Y.Penal Code § 125.05, subd. 3 (Supp.1972-1973); Wash.Rev.Code §§ 9.02.060 to 9.02.080 (Supp.1972). The precise status of criminal abortion laws in some States is made unclear by recent decisions in state and federal courts striking down existing state laws, in whole or in part.

38

'Whereas, Abortion, like any other medical procedure, should not be performed when contrary to the best interests of the patient since good medical practice requires due consideration for the patient's welfare and not mere acquiescence to the patient's demand; and

'Whereas, The standards of sound clinical judgment, which, together with informed patient consent should be determinative according to the merits of each individual case; therefore be it

'RESOLVED, That abortion is a medical procedure and should be performed only by a duly licensed physician and surgeon in an accredited hospital acting only after consultation with two other physicians chosen because of their professional competency and in conformance with standards of good medical practice and the Medical Practice Act of his State; and be it further

'RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-held moral principles. In these circumstances good medical practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice.' Proceedings of the AMA House of Delegates 220 (June 1970).

39

'The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion that is performed in accordance with good medical practice and under circumstances that do not violate the laws of the community in which he practices.

'In the matter of abortions, as of any other medical procedure, the Judicial Council becomes involved whenever there is alleged violation of the Principles of Medical Ethics as established by the House of Delegates.'

40

'UNIFORM ABORTION ACT

'Section 1. (Abortion Defined; When Authorized.)

'(a) 'Abortion' means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.

'(b) An abortion may be performed in this state only if it is performed:

'(1) by a physician licensed to practice medicine (or osteopathy) in this state or by a physician practicing medicine (or osteopathy) in the employ of the government of the United States or of this state, (and the abortion is performed (in the physician's office or in a medical clinic, or) in a hospital approved by the (Department of Health) or operated by the United States, this state, or any department, agency, or political subdivision of either;) or by a female upon herself upon the advice of the physician; and

'(2) within (20) weeks after the commencement of the pregnancy (or after (20) weeks only if the physician has reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or mental defect, or (iii) that the pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age of 16 years).

'Section 2. (Penalty.) Any person who performs or procures an abortion other than authorized by this Act is guilty of a (felony) and, upon conviction thereof, may be sentenced to pay a fine not exceeding ($1,000) or to imprisonment (in the state penitentiary) not exceeding (5 years), or both.

'Section 3. (Uniformity of Interpretation.) This Act shall be construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among those states which enact it.

'Section 4. (Short Title.) This Act may be cited as the Uniform Abortion Act.

'Section 5. (Severability.) If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provision of this Act are severable.

'Section 6. (Repeal.) The following acts and parts of acts are repealed:

'(1)

'(2)

'(3)

'Section 7. (Time of Taking Effect.) This Act shall take effect ___.'

41

'This Act is based largely upon the New York abortion act following a review of the more recent laws on abortion in several states and upon recognition of a more liberal trend in laws on this subject. Recognition was given also to the several decisions in state and federal courts which show a further trend toward liberalization of abortion laws, especially during the first trimester of pregnancy.

'Recognizing that a number of problems appeared in New York, a shorter time period for 'unlimited' abortions was advisable. The time period was bracketed to permit the various states to insert a figure more in keeping with the different conditions that might exist among the states. Likewise, the language limiting the place or places in which abortions may be performed was also bracketed to account for different conditions among the states. In addition, limitations on abortions after the initial 'unlimited' period were placed in brackets so that individual states may adopt all or any of these reasons, or place further restrictions upon abortions after the initial period.

'This Act does not contain any provision relating to medical review committees or prohibitions against sanctions imposed upon medical personnel refusing to participate in abortions because of religious or other similar reasons, or the like. Such provisions, while related, do not directly pertain to when, where, or by whom abortions may be performed; however, the Act is not drafted to exclude such a provision by a state wishing to enact the same.'

42

See, for example, YWCA v. Kugler, 342 F.Supp. 1048, 1074 (D.C.N.J.1972); Abele v. Markle, 342 F.Supp. 800, 805-806 (D.C.Conn.1972) (Newman, J., concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250 So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N.J.L. 86, 90 (1881); Means II 381-382.

43

See C. Haagensen & W. Lloyd, A. Hundred Years of Medicine 19 (1943).

44

Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957, 967 (1970) (England and Wales); Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health Service) (New York City); Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family Planning 5, 7 (1970); Tietze, Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J.A.M.A. 1149, 1152 (April 1961). Other sources are discussed in Lader 17-23.

45

See Brief of Amicus National Right to Life Committee; R. Drinan, The Inviolability of the Right to Be Born, in Abortion and the Law 107 (D. Smith ed. 1967); Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U.C.L.A.L.Rev. 233 (1969); Noonan 1.

46

See, e.g., Abele v. Markle, 342 F.Supp. 800 (D.C.Conn.1972), appeal docketed, No. 72-56.

47

See discussions in Means I and Means II.

48

See, e.g., State v. Murphy, 27 N.J.L. 112, 114 (1858).

49

Watson v. State, 9 Tex.App. 237, 244-245 (1880); Moore v. State, 37 Tex.Cr.R. 552, 561, 40 S.W. 287, 290 (1897); Shaw v. State, 73 Tex.Cr.R. 337, 339, 165 S.W. 930, 931 (1914); Fondren v. State, 74 Tex.Cr.R. 552, 557, 169 S.W. 411, 414 (1914); Gray v. State, 77 Tex.Cr.R. 221, 229, 178 S.W. 337, 341 (1915). There is no immunity in Texas for the father who is not married to the mother. Hammett v. State, 84 Tex.Cr.R. 635, 209 S.W. 661 (1919); Thompson v. State, Tex.Cr.App., 493 S.W.2d 913 (1971), appeal pending.

50

See Smith v. State, 33 Me., at 55; In re Vince, 2 N.J. 443, 450, 67 A.2d 141, 144 (1949). A short discussion of the modern law on this issue is contained in the Comment to the ALI's Model Penal Code § 207.11, at 158 and nn. 35-37 (Tent.Draft No. 9, 1959).

51

Tr. of Oral Rearg. 20-21.

52

Tr. of Oral Rearg. 24.

53

We are not aware that in the taking of any census under this clause, a fetus has ever been counted.

54

When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?

There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?

55

Cf. the Wisconsin abortion statute, defining 'unborn child' to mean 'a human being from the time of conception until it is born alive,' Wis.Stat. § 940.04(6) (1969), and the new Connecticut statute, Pub. Act No. 1 (May 1972 Special Session), declaring it to be the public policy of the State and the legislative intent 'to protect and preserve human life from the moment of conception.'

56

Edelstein 16.

57

Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For a stricter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion and the Law 124 (D. Smith ed. 1967).

58

Amicus Brief for the American Ethical Union et al. For the position of the National Council of Churches and of other denominations, see Lader 99-101.

59

L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland's Illustrated Medical Dictionary 1689 (24th ed. 1965).

60

Hellman & Pritchard, supra, n. 59, at 493.

61

For discussions of the development of the Roman Catholic position, see D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.

62

See Brodie, The New Biology and the Prenatal Child, 9 J.Family L. 391, 397 (1970); Gorney, The New Biology and the Future of Man, 15 U.C.L.A.L.Rev. 273 (1968); Note, Criminal Law-abortion-The 'Morning-After Pill' and Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore.L.Rev. 211 (1967); G. Taylor, The Biological Time Bomb 32 (1968); A. Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial Insemination and the Law, 67 Mich.L.Rev. 127 (1968); Note, Artificial Insemination and the Law, 1968 U.Ill.L.F. 203.

63

W. Prosser, The Law of Torts 33k-338 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts 1028-1031 (1956) ; Note, 63 Harv.L.Rev. 173 (1949).

64

See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Action for Death of Unborn Child, 15 A.L.R.3d 992 (1967).

65

Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360 (1971).

66

Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U.C.L.A.L.Rev. 233, 235-238 (1969); Note, 56 Iowa L.Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame Law. 349, 351-354 (1971).

67

Neither in this opinion nor in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, do we discuss the father's rights, if any exist in the constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the Texas and the Georgia statutes on their face take no cognizance of the father. We are aware that some statutes recognize the father under certain circumstances. North Carolina, for example, N.C.Gen.Stat. § 14-45.1 (Supp.1971), requires written permission for the abortion from the husband when the woman is a married minor, that is, when she is less than 18 years of age, 41 N.C.A.G. 489 (1971); if the woman is an unmarried minor, written permission from the parents is required. We need not now decide whether provisions of this kind are constitutional.

Mr. Justice STEWART, concurring.

In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93, purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: 'We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.' Id., at 730, 83 S.Ct., at 1031.1

Barely who years later, in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution.2 So it was clear*168 to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the 'liberty' that is protected by the Due Process Clause of the Fourteenth Amendment.3 As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

'In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed.' Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, 77 S.Ct. 752, 755-756, 1 L.Ed.2d 796; Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042. Cf. Shapiro v. Thompson, 394 U.S. 618, 629-630, 89 S.Ct. 1322, 1328-1329, 22 L.Ed.2d 600; United States v. Guest, 383 U.S. 745, 757-758, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239; Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675; Aptheker v. Secretary of State, 378 U.S. 500, 505, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992; Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204; Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694-695, 98 L.Ed. 884; Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131.

*169As Mr. Justice Harlan once wrote: '(T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points priced out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.' Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, 'Great concepts like . . . 'liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.' National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1195, 93 L.Ed. 1556 (dissenting opinion).

Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645; Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655. As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, we recognized 'the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person*170 as the decision whether to bear or beget a child.' That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. 'Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).' Abele v. Markle, 351 F.Supp. 224, 227 (D.C.Conn.1972).

Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The question then becomes whether the state interests advanced to justify this abridgment can survive the 'particularly careful scrutiny' that the Fourteenth Amendment here requires.

The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of per*171sonal liberty worked by the existing Texas law. Accordingly, I join the Court's opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment.

1

Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at 733, 83 S.Ct., at 1032.

2

There is no constitutional right of privacy, as such. '(The Fourth) Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy-his right to be let alone by other people-is like the protection of his property and of his very life, left largely to the law of the individual States.' Katz v. United States, 389 U.S. 347, 350-351, 88 S.Ct. 507, 510-511, 19 L.Ed.2d 576 (footnotes omitted).

3

This was also clear to Mr. Justice Black, 381 U.S., at 507, (dissenting opinion); to Mr. Justice Harlan, 381 U.S., at 499, 85 S.Ct., at 1689 (opinion concurring in the judgment); and to Mr. Justice White, 381 U.S., at 502, 85 S.Ct., at 1691 (opinion concurring in the judgment). See also Mr. Justice Harlan's thorough and thoughtful opinion dissenting from dismissal of the appeal in Poe v. Ullman, 367 U.S. 497, 522, 81 S.Ct. 1752, 1765, 6 L.Ed.2d 989.

Mr. Justice REHNQUIST, dissenting.

The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.

I

The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit. While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The Court's statement of facts in this case makes clear, however, that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of pregnancy as of the date the complaint was filed.

Nothing in the Court's opinion indicates that Texas might not constitutionally apply its proscription of abortion as written to a woman in that stage of pregnancy. Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may*172 impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885). See also Ashwander v. TVA, 297 U.S. 288, 345, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

II

Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of 'privacy' is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not 'private' in the ordinary usage of that word. Nor is the 'privacy' that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

If the Court means by the term 'privacy' no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of 'liberty' protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice STEWART in his concurring opinion that the 'liberty,' against deprivation of which without due process the Fourteenth*173 Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed. 563 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The Court eschews the history of the Fourteenth Amendment in its reliance on the 'compelling state interest' test. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 179, 92 S.Ct. 1400, 1408, 31 L.Ed.2d 768 (1972) (dissenting opinion). But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the 'compelling state interest test,' the Court's opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.

*174While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 74, 25 S.Ct. 539, 551, 49 L.Ed. 937 (1905), the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be 'compelling.' The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not 'so rooted in the traditions and conscience of our people as to be ranked as fundamental,' Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the 'right' to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the Scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn.Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Four*175teenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.1 While many States have amended or updated*176 their laws, 21 of the laws on the books in 1868 remain in effect today.2 Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857*177 and 'has remained substantially unchanged to the present time.' Ante, at 119.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

III

Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found*178 to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply 'struck down' but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed. 572 (1969).

For all of the foregoing reasons, I respectfully dissent.

1

Jurisdictions having enacted abortion laws prior to the adoption of the Fourteenth Amendment in 1868:

1. Alabama-Ala.Acts, c. 6, § 2 (1840).

2. Arizona-Howell Code, c. 10, § 45 (1865).

3. Arkansas-Ark.Rev.Stat., c. 44, div. III, Art. II, § 6 (1838).

4. California-Cal.Sess.Laws, c. 99, § 45, p. 233 (1849-1850).

5. Colorado (Terr.)-Colo.Gen.Laws of Terr. of Colo., 1st Sess., § 42, pp. 296-297 (1861).

6. Connecticut-Conn.Stat. Tit. 20, §§ 14, 16 (1821). By 1868, this statute had been replaced by another abortion law. Conn.Pub.Acts, c. 71, §§ 1, 2, p. 65 (1860).

7. Florida-Fla.Acts 1st Sess., c. 1637, subs. 3, §§ 10, 11, subc. 8, §§ 9, 10, 11 (1868), as amended, now Fla.Stat.Ann. §§ 782.09, 782.10, 797.01, 797.02, 782.16 (1965).

8. Georgia-Ga.Pen.Code, 4th Div., § 20 (1833).

9. Kingdom of Hawaii-Hawaii Pen.Code, c. 12, §§ 1, 2, 3 (1850).

10. Idaho (Terr.)-Idaho (Terr.) Laws, Crimes and Punishments §§ 33, 34, 42, pp. 441, 443 (1863).

11. Illinois-Ill.Rev. Criminal Code §§ 40, 41, 46, pp. 130, 131 (1827). By 1868, this statute had been replaced by a subsequent enactment. Ill.Pub.Laws §§ 1, 2, 3, p. 89 (1867).

12. Indiana-Ind.Rev.Stat. §§ 1, 3, p. 224 (1838). By 1868 this statute had been superseded by a subsequent enactment. Ind.Laws, c. LXXXI, § 2 (1859).

13. Iowa (Terr.)-Iowa (Terr.) Stat. 1st Legis., 1st Sess., § 18, p. 145 (1838). By 1868, this statute had been superseded by a subsequent enactment. Iowa (Terr.) Rev.Stat., c. 49, §§ 10, 13 (1843).

14. Kansas (Terr.)-Kan. (Terr.) Stat., c. 48, §§ 9, 10, 39 (1855). By 1868, this statute had been superseded by a subsequent enactment. Kan. (Terr.) Laws, c. 28, §§ 9, 10, 37 (1859).

15. Louisiana-La.Rev.Stat., Crimes and Offenses § 24, p. 138 (1856).

16. Maine-Me.Rev.Stat., c. 160, §§ 11, 12, 13, 14 (1840).

17. Maryland-Md.Laws, c. 179, § 2, p. 315 (1868).

18. Massachusetts-Mass.Acts & Resolves, c. 27 (1845).

19. Michigan-Mich.Rev.Stat., c. 153, §§ 32, 33, 34, p. 662 (1846).

20. Minnesota (Terr.)-Minn. (Terr.) Rev.Stat., c. 100, §§ 10, 11, p. 493 (1851).

21. Mississippi-Miss.Code, c. 64, §§ 8, 9, p. 958 (1848).

22. Missouri-Mo.Rev.Stat., Art. II, §§ 9, 10, 36, pp. 168, 172 (1835).

23. Montana (Terr.)-Mont. (Terr.) Laws, Criminal Practice Acts § 41, p. 184 (1864).

24. Nevada (Terr.)-Nev. (Terr.) Laws, c. 28, § 42, p. 63 (1861).

25. New Hampshire-N.H.Laws, c. 743, § 1, p. 266 (1848).

26. New Jersey-N.J.Laws, p. 266 (1849).

27. New York-N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, §§ 8, 9, pp. 12-13 (1828). By 1868, this statute had been superseded. N.Y.Laws, c. 260, §§ 1, 2, 3, 4, 5, 6, pp. 285-286 (1845); N.Y.Laws, c. 22, § 1, p. 19 (1846).

28. Ohio-Ohio Gen.Stat. §§ 111(1), 112(2), p. 252 (1841).

29. Oregon-Ore.Gen.Laws, Crim.Code, c. 43, § 509, p. 528 (1845-1964).

30. Pennsylvania-Pa.Laws No. 374 §§ 87, 88, 89 (1860).

31. Texas-Tex.Gen.Stat.Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White 1859).

32. Vermont-Vt.Acts No. 33, § 1 (1846). By 1868, this statute had been amended. Vt.Acts No. 57, §§ 1, 3 (1867).

33. Virginia-Va.Acts, Tit. II, c. 3, § 9, p. 96 (1848).

34. Washington (Terr.)-Wash. (Terr.) Stats., c. II, §§ 37, 38, p. 81 (1854).

35. West Virginia-Va.Acts, Tit. II, c. 3, § 9, p. 96 (1848).

36. Wisconsin-Wis.Rev.Stat., c. 133, §§ 10, 11 (1849). By 1868, this statute had been superseded. Wis.Rev.Stat., c. 164, §§ 10, 11; c. 169, §§ 58, 59 (1858).

----------

2

Abortion laws in effect in 1868 and still applicable as of August 1970:

1. Arizona (1865).

2. Connecticut (1860).

3. Florida (1868).

4. Idaho (1863).

5. Indiana (1838).

6. Iowa (1843).

7. Maine (1840).

8. Massachusetts (1845).

9. Michigan (1846).

10. Minnesota (1851).

11. Missouri (1835).

12. Montana (1864).

13. Nevada (1861).

14. New Hampshire (1848).

15. New Jersey (1849).

16. Ohio (1841).

17. Pennsylvania (1860).

18. Texas (1859).

19. Vermont (1867).

20. West Virginia (1848).

21. Wisconsin (1858).

Bowers, Attorney General of Georgia v. Hardwick et al.

Argued March 31, 1986

Decided June 30, 1986

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

*187 Michael E. Hobbs, Senior Assistant Attorney General of Georgia, argued the cause for petitioner. With him on the briefs were Michael J. Bowers, Attorney General, pro se, Marion O. Gordon, First Assistant Attorney General, and Daryl A. Robinson, Senior Assistant Attorney General.

Laurence H. Tribe argued the cause for respondent Hardwick. With him on the brief were Kathleen M. Sullivan and Kathleen L. Wilde.*

Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Robert Hermann, Solicitor General, Lawrence S. Kahn, Howard L. Zwickel, Charles R. Fraser, and Sanford M. Cohen, Assistant Attorneys General, and John Van de Kamp, Attorney General of California; for the American Jewish Congress by Daniel D. Levenson, David Cohen, and Frederick Mandel; for the American Psychological Association et al. by Margaret Farrell Ewing, Donald N. Bersoff, Anne Simon, Nadine Taub, and Herbert Semmel; for the Association of the Bar of the City of New York by Steven A. Rosen; for the National Organization for Women by John S. L. Katz; and for the Presbyterian Church (U. S. A.) et al. by Jeffrey O. Bramlett.

Briefs of amici curiae were filed for the Lesbian Rights Project et al. by Mary C. Dunlap; and for the National Gay Rights Advocates et al. by Edward P Errante, Leonard Graff, and Jay Kohorn.

*

Briefs of amici curiae urging reversal were filed for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Rutherford Institute et al. by W. Charles Bundren, Guy O. Farley, Jr., George M. Weaver, William B. Hollberg, Wendell R. Bird, John W Whitehead, Thomas O. Kotouc, and Alfred Lindh; and for David Robinson, Jr., pro se.

JUSTICE WHITE delivered the opinion of the Court.

In August 1982, respondent Hardwick (hereafter respondent) was charged with violating the Georgia statute criminalizing *188 sodomy1 by committing that act with another adult male in the bedroom of respondent’s home. After a preliminary hearing, the District Attorney decided not to present the matter to the grand jury unless further evidence developed.

Respondent then brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy.2 He asserted that he was a practicing homosexual, that the Georgia sodomy statute, as administered by the defendants, placed him in imminent danger of arrest, and that the statute for several reasons violates the Federal Constitution. The District Court granted the defendants’ motion to dismiss for failure to state a claim, relying on Doe v. Commonwealth’s Attorney for the City of Richmond, 403 F. Supp. 1199 (ED Va. 1975), which this Court summarily affirmed, 425 U. S. 901 (1976).

*189 A divided panel of the Court of Appeals for the Eleventh Circuit reversed. 760 F. 2d 1202 (1985). The court first held that, because Doe was distinguishable and in any event had been undermined by later decisions, our summary affirmance in that case did not require affirmance of the District Court. Relying on our decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Stanley v. Georgia, 394 U. S. 557 (1969); and Roe v. Wade, 410 U. S. 113 (1973), the court went on to hold that the Georgia statute violated respondent’s fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. The case was remanded for trial, at which, to prevail, the State would have to prove that the statute is supported by a compelling interest and is the most narrowly drawn means of achieving that end.

Because other Courts of Appeals have arrived at judgments contrary to that of the Eleventh Circuit in this case,3 we granted the Attorney General’s petition for certiorari questioning the holding that the sodomy statute violates the fundamental rights of homosexuals. We agree with petitioner that the Court of Appeals erred, and hence reverse its judgment.4

*190 This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state-court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. The case also calls for some judgment about the limits of the Court’s role in carrying out its constitutional mandate.

We first register our disagreement with the Court of Appeals and with respondent that the Court’s prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case. The reach of this line of cases was sketched in Carey v. Population Services International, 431 U. S. 678, 685 (1977). Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923), were described as dealing with child rearing and education; Prince v. Massachusetts, 321 U. S. 158 (1944), with family relationships; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), with procreation; Loving v. Virginia, 388 U. S. 1 (1967), with marriage; Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, with contraception; and Roe v. Wade, 410 U. S. 113 (1973), with abortion. The latter three cases were interpreted as construing the Due Process Clause of the Fourteenth Amendment to confer a fundamental individual right to decide whether or not to beget or bear a child. Carey v. Population Services International, supra, at 688-689.

Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the *191 claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court’s opinion in Carey twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far. 431 U. S., at 688, n. 5, 694, n. 17.

Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey.

Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U. S. 319, 325, 326 (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of ordered liberty,” such that “neither *192 liberty nor justice would exist if [they] were sacrificed.” A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (opinion of POWELL, J.), where they are characterized as those liberties that are “deeply rooted in this Nation’s history and tradition.” Id., at 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U. S., at 506.

It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. See generally Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.5 In 1868, when the Fourteenth Amendment was *193 ratified, all but 5 of the 37 States in the Union had criminal sodomy laws.6 In fact, until 1961,7 all 50 States outlawed sodomy, and today, 24 States and the District of Columbia *194 continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U. Miami L. Rev., supra, at 524, n. 9. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation *195 of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls for short of overcoming this resistance.

Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia, 394 U. S. 557 (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one’s home: “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.” Id., at 565.

Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. Id., at 568, n. 11. And if respondent’s submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct *196 while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.8

Accordingly, the judgment of the Court of Appeals is

Reversed.

1

Georgia Code Ann. § 16-6-2 (1984) provides, in pertinent part, as follows:

”(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . .

”(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . . .”

2

John and Mary Doe were also plaintiffs in the action. They alleged that they wished to engage in sexual activity proscribed by § 16-6-2 in the privacy of their home, App. 3, and that they had been “chilled and deterred” from engaging in such activity by both the existence of the statute and Hardwick’s arrest. Id., at 5. The District Court held, however, that because they had neither sustained, nor were in immediate danger of sustaining, any direct injury from the enforcement of the statute, they did not have proper standing to maintain the action. Id., at 18. The Court of Appeals affirmed the District Court’s judgment dismissing the Does’ claim for lack of standing, 760 F. 2d 1202, 1206-1207 (CA11 1985), and the Does do not challenge that holding in this Court.

The only claim properly before the Court, therefore, is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.

3

See Baker v. Wade, 769 F. 2d 289, rehearing denied, 774 F. 2d 1285 (CA5 1985) (en banc); Dronenburg v. Zech, 239 U. S. App. D. C. 229, 741 F. 2d 1388, rehearing denied, 241 U. S. App. D. C. 262, 746 F. 2d 1579 (1984).

4

Petitioner also submits that the Court of Appeals erred in holding that the District Court was not obligated to follow our summary affirmance in Doe. We need not resolve this dispute, for we prefer to give plenary consideration to the merits of this case rather than rely on our earlier action in Doe. See Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 14 (1976); Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 309, n. 1 (1976); Edelman v. Jordan, 415 U. S. 651, 671 (1974). Cf. Hicks v. Miranda, 422 U. S. 332, 344 (1975).

5

Criminal sodomy laws in effect in 1791:

Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, § 2 (rev. 1672).

Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719).

Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981).

Maryland had no criminal sodomy statute in 1791. Maryland’s Declaration of Rights, passed in 1776, however, stated that “the inhabitants of Maryland are entitled to the common law of England,” and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975).

Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785.

New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hampshire 1680-1726, p. 141 (1978).

Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7.

New York: Laws of New York, ch. 21 (passed 1787).

At the time of ratification of the Bill of Rights, North Carolina had adopted the English statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina, ch. 17, p. 314 (Martin ed. 1792).

Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pennsylvania, ch. CLIV, § 2 (passed 1790).

Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977).

South Carolina: Public Laws of the State of South Carolina, p. 49 (1790).

At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening’s Laws of Virginia, ch. 5, § 6, p. 127 (1821) (passed 1776).

6

Criminal sodomy statutes in effect in 1868:

Alabama: Ala. Rev. Code § 3604 (1867).

Arizona (Terr.): Howell Code, ch. 10, § 48 (1865).

Arkansas: Ark. Stat., ch. 51, Art. IV, § 5 (1858).

California: 1 Cal. Gen. Laws, ¶ 1450, § 48 (1865).

Colorado (Terr.): Colo. Rev. Stat., ch. 22, §§ 45, 46 (1868).

Connecticut: Conn. Gen. Stat., Tit. 122, ch. 7, § 124 (1866).

Delaware: Del. Rev. Stat., ch. 131, § 7 (1893).

Florida: Fla. Rev. Stat., div. 5, § 2614 (passed 1868) (1892).

Georgia: Ga. Code §§ 4286, 4287, 4290 (1867).

Kingdom of Hawaii: Haw. Penal Code, ch. 13, § 11 (1869).

Illinois: Ill. Rev. Stat., div. 5, §§ 49, 50 (1845).

Kansas (Terr.): Kan. Stat., ch. 53, § 7 (1855).

Kentucky: 1 Ky. Rev. Stat., ch. 28, Art. IV, § 11 (1860).

Louisiana: La. Rev. Stat., Crimes and Offences, § 5 (1856).

Maine: Me. Rev. Stat., Tit. XII, ch. 160, § 4 (1840).

Maryland: 1 Md. Code, Art. 30, § 201 (1860).

Massachusetts: Mass. Gen. Stat., ch. 165, § 18 (1860).

Michigan: Mich. Rev. Stat., Tit. 30, ch. 158, § 16 (1846).

Minnesota: Minn. Stat., ch. 96, § 13 (1859).

Mississippi: Miss. Rev. Code, ch. 64, § LII, Art. 238 (1857).

Missouri: 1 Mo. Rev. Stat., ch. 50, Art. VIII, § 7 (1856).

Montana (Terr.): Mont. Acts, Resolutions, Memorials, Criminal Practice Acts, ch. IV, § 44 (1866).

Nebraska (Terr.): Neb. Rev. Stat., Crim. Code, ch. 4, § 47 (1866).

Nevada (Terr.): Nev. Comp. Laws, 1861-1900, Crimes and Punishments, § 45.

New Hampshire: N. H. Laws, Act. of June 19, 1812, § 5 (1815).

New Jersey: N. J. Rev. Stat., Tit. 8, ch. 1, § 9 (1847).

New York: 3 N. Y. Rev. Stat., pt. 4, ch. 1, Tit. 5, § 20 (5th ed. 1859).

North Carolina: N. C. Rev. Code, ch. 34, § 6 (1855).

Oregon: Laws of Ore., Crimes — Against Morality, etc., ch. 7, § 655 (1874).

Pennsylvania: Act of Mar. 31, 1860, § 32, Pub. L. 392, in 1 Digest of Statute Law of Pa. 1700-1903, p. 1011 (Purdon 1905).

Rhode Island: R. I. Gen. Stat., ch. 232, § 12 (1872).

South Carolina: Act of 1712, in 2 Stat. at Large of S. C. 1682-1716, p. 493 (1837).

Tennessee: Tenn. Code, ch. 8, Art. 1, § 4843 (1858).

Texas: Tex. Rev. Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed 1860).

Vermont: Acts and Laws of the State of Vt. (1779).

Virginia: Va. Code, ch. 149, § 12 (1868).

West Virginia: W. Va. Code, ch. 149, § 12 (1868).

Wisconsin (Terr.): Wis. Stat. § 14, p. 367 (1839).

7

In 1961, Illinois adopted the American Law Institute’s Model Penal Code, which decriminalized adult, consensual, private, sexual conduct. Criminal Code of 1961, §§ 11-2, 11-3, 1961 Ill. Laws, pp. 1985, 2006 (codified as amended at Ill. Rev. Stat., ch. 38, ¶¶ 11-2, 11-3 (1983) (repealed 1984)). See American Law Institute, Model Penal Code § 213.2 (Proposed Official Draft 1962).

8

Respondent does not defend the judgment below based on the Ninth Amendment, the Equal Protection Clause, or the Eighth Amendment.

CHIEF JUSTICE BURGER, concurring.

I join the Court’s opinion, but I write separately to underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.

As the Court notes, ante, at 192, the proscriptions against sodomy have very “ancient roots.” Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality *197 and the Western Christian Tradition 70-81 (1975). During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

This is essentially not a question of personal “preferences” but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.

JUSTICE POWELL, concurring.

I join the opinion of the Court. I agree with the Court that there is no fundamental right — i. e., no substantive right under the Due Process Clause — such as that claimed by respondent Hardwick, and found to exist by the Court of Appeals. This is not to suggest, however, that respondent may not be protected by the Eighth Amendment of the Constitution. The Georgia statute at issue in this case, Ga. Code Ann. § 16-6-2 (1984), authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such conduct — certainly a sentence of long duration — would create a serious Eighth Amendment issue. Under the Georgia statute a single act of sodomy, even in the private setting of a home, is a *198 felony comparable in terms of the possible sentence imposed to serious felonies such as aggravated battery, § 16-5-24, first-degree arson, § 16-7-60, and robbery, § 16-8-40.1

In this case, however, respondent has not been tried, much less convicted and sentenced.2 Moreover, respondent has not raised the Eighth Amendment issue below. For these reasons this constitutional argument is not before us.

1

Among those States that continue to make sodomy a crime, Georgia authorizes one of the longest possible sentences. See Ala. Code § 13A-6-65(a)(3) (1982) (1-year maximum); Ariz. Rev. Stat. Ann. §§ 13-1411, 13-1412 (West Supp. 1985) (30 days); Ark. Stat. Ann. § 41-1813 (1977) (1-year maximum); D. C. Code § 22-3502 (1981) (10-year maximum); Fla. Stat. § 800.02 (1985) (60-day maximum); Ga. Code Ann. § 16-6-2 (1984) (1 to 20 years); Idaho Code § 18-6605 (1979) (5-year minimum); Kan. Stat. Ann. § 21-3505 (Supp. 1985) (6-month maximum); Ky. Rev. Stat. § 510.100 (1985) (90 days to 12 months); La. Rev. Stat. Ann. § 14:89 (West 1986) (5-year maximum); Md. Ann. Code, Art. 27, §§ 553-554 (1982) (10-year maximum); Mich. Comp. Laws § 750.158 (1968) (15-year maximum); Minn. Stat. § 609.293 (1984) (1-year maximum); Miss. Code Ann. § 97-29-59 (1973) (10-year maximum); Mo. Rev. Stat. § 566.090 (Supp. 1984) (1-year maximum); Mont. Code Ann. § 45-5-505 (1985) (10-year maximum); Nev. Rev. Stat. § 201.190 (1985) (6-year maximum); N. C. Gen. Stat. § 14-177 (1981) (10-year maximum); Okla. Stat., Tit. 21, § 886 (1981) (10-year maximum); R. I. Gen. Laws § 11-10-1 (1981) (7 to 20 years); S. C. Code § 16-15-120 (1985) (5-year maximum); Tenn. Code Ann. § 39-2-612 (1982) (5 to 15 years); Tex. Penal Code Ann. § 21.06 (1974) ($200 maximum fine); Utah Code Ann. § 76-5-403 (1978) (6-month maximum); Va. Code § 18.2-361 (1982) (5-year maximum).

2

It was conceded at oral argument that, prior to the complaint against respondent Hardwick, there had been no reported decision involving prosecution for private homosexual sodomy under this statute for several decades. See Thompson v. Aldredge, 187 Ga. 467, 200 S. E. 799 (1939). Moreover, the State has declined to present the criminal charge against Hardwick to a grand jury, and this is a suit for declaratory judgment brought by respondents challenging the validity of the statute. The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct. Some 26 States have repealed similar statutes. But the constitutional validity of the Georgia statute was put in issue by respondents, and for the reasons stated by the Court, I cannot say that conduct condemned for hundreds of years has now become a fundamental right.

*199 JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.

This case is no more about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, ante, at 191, than Stanley v. Georgia, 394 U. S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U. S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone.” Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).

The statute at issue, Ga. Code Ann. § 16-6-2 (1984), denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity. The Court concludes that § 16-6-2 is valid essentially because “the laws of . . . many States . . . still make such conduct illegal and have done so for a very long time.” Ante, at 190. But the fact that the moral judgments expressed by statutes like § 16-6-2 may be ” `natural and familiar . . . ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.’ ” Roe v. Wade, 410 U. S. 113, 117 (1973), quoting Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Like Justice Holmes, I believe that ”[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). I believe we must analyze respondent Hardwick’s claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate *200 aspects of their lives, it must do more than assert that the choice they have made is an ” `abominable crime not fit to be named among Christians.’ ” Herring v. State, 119 Ga. 709, 721, 46 S. E. 876, 882 (1904).

I

In its haste to reverse the Court of Appeals and hold that the Constitution does not “confe® a fundamental right upon homosexuals to engage in sodomy,” ante, at 190, the Court relegates the actual statute being challenged to a footnote and ignores the procedural posture of the case before it. A fair reading of the statute and of the complaint clearly reveals that the majority has distorted the question this case presents.

First, the Court’s almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens. Cf. ante, at 188, n. 2. Rather, Georgia has provided that ”[a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” Ga. Code Ann. § 16-6-2(a) (1984). The sex or status of the persons who engage in the act is irrelevant as a matter of state law. In fact, to the extent I can discern a legislative purpose for Georgia’s 1968 enactment of § 16-6-2, that purpose seems to have been to broaden the coverage of the law to reach heterosexual as well as homosexual activity.1 I therefore see no basis for the *201 Court’s decision to treat this case as an “as applied” challenge to § 16-6-2, see ante, at 188, n. 2, or for Georgia’s attempt, both in its brief and at oral argument, to defend § 16-6-2 solely on the grounds that it prohibits homosexual activity. Michael Hardwick’s standing may rest in significant part on Georgia’s apparent willingness to enforce against homosexuals a law it seems not to have any desire to enforce against heterosexuals. See Tr. of Oral Arg. 4-5; cf. 760 F. 2d 1202, 1205-1206 (CA11 1985). But his claim that § 16-6-2 involves an unconstitutional intrusion into his privacy and his right of intimate association does not depend in any way on his sexual orientation.

Second, I disagree with the Court’s refusal to consider whether § 16-6-2 runs afoul of the Eighth or Ninth Amendments or the Equal Protection Clause of the Fourteenth Amendment. Ante, at 196, n. 8. Respondent’s complaint expressly invoked the Ninth Amendment, see App. 6, and he relied heavily before this Court on Griswold v. Connecticut, 381 U. S. 479, 484 (1965), which identifies that Amendment as one of the specific constitutional provisions giving “life and substance” to our understanding of privacy. See Brief for Respondent Hardwick 10-12; Tr. of Oral Arg. 33. More importantly, the procedural posture of the case requires that we affirm the Court of Appeals’ judgment if there is any ground on which respondent may be entitled to relief. This case is before us on petitioner’s motion to dismiss for failure to state a claim, Fed. Rule Civ. Proc. 12(b)(6). See App. 17. It is a well-settled principle of law that “a complaint should not be dismissed merely because a plaintiff’s allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” *202 Bramlet v. Wilson, 495 F. 2d 714, 716 (CA8 1974); see Parr v. Great Lakes Express Co., 484 F. 2d 767, 773 (CA7 1973); Due v. Tallahassee Theaters, Inc., 333 F. 2d 630, 631 (CA5 1964); United States v. Howell, 318 F. 2d 162, 166 (CA9 1963); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 601-602 (1969); see also Conley v. Gibson, 355 U. S. 41, 45-46 (1957). Thus, even if respondent did not advance claims based on the Eighth or Ninth Amendments, or on the Equal Protection Clause, his complaint should not be dismissed if any of those provisions could entitle him to relief. I need not reach either the Eighth Amendment or the Equal Protection Clause issues because I believe that Hardwick has stated a cognizable claim that § 16-6-2 interferes with constitutionally protected interests in privacy and freedom of intimate association. But neither the Eighth Amendment nor the Equal Protection Clause is so clearly irrelevant that a claim resting on either provision should be peremptorily dismissed.2 The Court’s cramped reading of the *203 issue before it makes for a short opinion, but it does little to make for a persuasive one.

II

“Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.” Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S. 747, 772 (1986). In construing the right to privacy, the Court has proceeded along two somewhat distinct, *204 albeit complementary, lines. First, it has recognized a privacy interest with reference to certain decisions that are properly for the individual to make. E. g., Roe v. Wade, 410 U. S. 113 (1973); Pierce v. Society of Sisters, 268 U. S. 510 (1925). Second, it has recognized a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged. E. g., United States v. Karo, 468 U. S. 705 (1984); Payton v. New York, 445 U. S. 573 (1980); Rios v. United States, 364 U. S. 253 (1960). The case before us implicates both the decisional and the spatial aspects of the right to privacy.

A

The Court concludes today that none of our prior cases dealing with various decisions that individuals are entitled to make free of governmental interference “bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case.” Ante, at 190-191. While it is true that these cases may be characterized by their connection to protection of the family, see Roberts v. United States Jaycees, 468 U. S. 609, 619 (1984), the Court’s conclusion that they extend no further than this boundary ignores the warning in Moore v. East Cleveland, 431 U. S. 494, 501 (1977) (plurality opinion), against “clos[ing] our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment’s Due Process Clause.” We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. ”[T]he concept of privacy embodies the `moral fact that a person belongs to himself and not others nor to society as a whole.’ ” Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S., at 777, n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub. Affairs 288-289 (1977). And so we protect the decision whether to *205 marry precisely because marriage “is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U. S., at 486. We protect the decision whether to have a child because parenthood alters so dramatically an individual’s self-definition, not because of demographic considerations or the Bible’s command to be fruitful and multiply. Cf. Thornburgh v. American College of Obstetricians & Gynecologists, supra, at 777, n. 6 (STEVENS, J., concurring). And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households. Cf. Moore v. East Cleveland, 431 U. S., at 500-506 (plurality opinion). The Court recognized in Roberts, 468 U. S., at 619, that the “ability independently to define one’s identity that is central to any concept of liberty” cannot truly be exercised in a vacuum; we all depend on the “emotional enrichment from close ties with others.” Ibid.

Only the most willful blindness could obscure the fact that sexual intimacy is “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality,” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 63 (1973); see also Carey v. Population Services International, 431 U. S. 678, 685 (1977). The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many “right” ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. See Karst, The Freedom of Intimate Association, 89 Yale L. J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U. S. 438, 453 (1972); Roe v. Wade, 410 U. S., at 153.

In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose *206 how to conduct their lives is acceptance of the fact that different individuals will make different choices. For example, in holding that the clearly important state interest in public education should give way to a competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court declared: “There can be no assumption that today’s majority is `right’ and the Amish and others like them are `wrong.’ A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.” Wisconsin v. Yoder, 406 U. S. 205, 223-224 (1972). The Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.

B

The behavior for which Hardwick faces prosecution occurred in his own home, a place to which the Fourth Amendment attaches special significance. The Court’s treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behavior, so too, protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there. Even when our understanding of the contours of the right to privacy depends on “reference to a `place,’ ” Katz v. United States, 389 U. S., at 361 (Harlan, J., concurring), “the essence of a Fourth Amendment violation is `not the breaking of [a person’s] doors, and the rummaging of his drawers,’ but rather is `the invasion of his indefensible right of personal security, personal liberty and private property.’ ” California v. Ciraolo, 476 U. S. 207, 226 (1986) (POWELL, J., dissenting), *207 quoting Boyd v. United States, 116 U. S. 616, 630 (1886).

The Court’s interpretation of the pivotal case of Stanley v. Georgia, 394 U. S. 557 (1969), is entirely unconvincing. Stanley held that Georgia’s undoubted power to punish the public distribution of constitutionally unprotected, obscene material did not permit the State to punish the private possession of such material. According to the majority here, Stanley relied entirely on the First Amendment, and thus, it is claimed, sheds no light on cases not involving printed materials. Ante, at 195. But that is not what Stanley said. Rather, the Stanley Court anchored its holding in the Fourth Amendment’s special protection for the individual in his home:

” `The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.’ ..... “These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home.” 394 U. S., at 564-565, quoting Olmstead v. United States, 277 U. S., at 478 (Brandeis, J., dissenting).

The central place that Stanley gives Justice Brandeis’ dissent in Olmstead, a case raising no First Amendment claim, shows that Stanley rested as much on the Court’s understanding of the Fourth Amendment as it did on the First. Indeed, in Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973), the Court suggested that reliance on the Fourth *208 Amendment not only supported the Court’s outcome in Stanley but actually was necessary to it: “If obscene material unprotected by the First Amendment in itself carried with it a `penumbra’ of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the `privacy of the home,’ which was hardly more than a reaffirmation that `a man’s home is his castle.’ ” 413 U. S., at 66. “The right of the people to be secure in their . . . houses,” expressly guaranteed by the Fourth Amendment, is perhaps the most “textual” of the various constitutional provisions that inform our understanding of the right to privacy, and thus I cannot agree with the Court’s statement that ”[t]he right pressed upon us here has no . . . support in the text of the Constitution,” ante, at 195. Indeed, the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy.

III

The Court’s failure to comprehend the magnitude of the liberty interests at stake in this case leads it to slight the question whether petitioner, on behalf of the State, has justified Georgia’s infringement on these interests. I believe that neither of the two general justifications for § 16-6-2 that petitioner has advanced warrants dismissing respondent’s challenge for failure to state a claim.

First, petitioner asserts that the acts made criminal by the statute may have serious adverse consequences for “the general public health and welfare,” such as spreading communicable diseases or fostering other criminal activity. Brief for Petitioner 37. Inasmuch as this case was dismissed by the District Court on the pleading, it is not surprising that the record before us is barren of any evidence to support petitioner’s claim.3 In light of the state of the record, I see *209 no justification for the Court’s attempt to equate the private, consensual sexual activity at issue here with the “possession in the home of drugs, firearms, or stolen goods,” ante, at 195, to which Stanley refused to extend its protection. 394 U. S., at 568, n. 11. None of the behavior so mentioned in Stanley can properly be viewed as ”[v]ictimless,” ante, at 195: drugs and weapons are inherently dangerous, see, e. g., McLaughlin v. United States, 476 U. S. 16 (1986), and for property to be “stolen,” someone must have been wrongfully deprived of it. Nothing in the record before the Court provides any justification for finding the activity forbidden by § 16-6-2 to be physically dangerous, either to the persons engaged in it or to others.4

*210 The core of petitioner’s defense of § 16-6-2, however, is that respondent and others who engage in the conduct prohibited by § 16-6-2 interfere with Georgia’s exercise of the ” `right of the Nation and of the States to maintain a decent society,’ ” Paris Adult Theater I v. Slaton, 413 U. S., at 59-60, quoting Jacobellis v. Ohio, 378 U. S. 184, 199 (1964) (Warren, C. J., dissenting). Essentially, petitioner argues, and the Court agrees, that the fact that the acts described in § 16-6-2 “for hundreds of years, if not thousands, have been uniformly condemned as immoral” is a sufficient reason to permit a State to ban them today. Brief for Petitioner 19; see ante, at 190, 192-194, 196.

I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court’s security. See, e. g., Roe v. Wade, 410 U. S. 113 (1973); Loving v. Virginia, 388 U. S. 1 (1967); Brown v. Board of Education, 347 U. S. 483 (1954).5 As Justice Jackson wrote so eloquently *211 for the Court in West Virginia Board of Education v. Barnette, 319 U. S. 624, 641-642 (1943), “we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” See also Karst, 89 Yale L. J., at 627. It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.

The assertion that “traditional Judeo-Christian values proscribe” the conduct involved, Brief for Petitioner 20, cannot provide an adequate justification for § 16-6-2. That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine. See, e. g., McGowan v. Maryland, 366 U. S. 420, 429-453 (1961); Stone v. Graham, 449 U. S. 39 (1980). Thus, far from buttressing his case, petitioner’s invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy’s heretical status during the Middle Ages undermines his suggestion that § 16-6-2 represents a legitimate use of secular coercive power.6 A State can no more punish private behavior because *212 of religious intolerance than it can punish such behavior because of racial animus. “The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U. S. 429, 433 (1984). No matter how uncomfortable a certain group may make the majority of this Court, we have held that ”[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.” O’Connor v. Donaldson, 422 U. S. 563, 575 (1975). See also Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985); United States Dept. of Agriculture v. Moreno, 413 U. S. 528, 534 (1973).

Nor can § 16-6-2 be justified as a “morally neutral” exercise of Georgia’s power to “protect the public environment,” Paris Adult Theatre I, 413 U. S., at 68-69. Certainly, some private behavior can affect the fabric of society as a whole. Reasonable people may differ about whether particular sexual acts are moral or immoral, but “we have ample evidence for believing that people will not abandon morality, will not think any better of murder, cruelty and dishonesty, merely because some private sexual practice which they abominate is not punished by the law.” H. L. A. Hart, Immorality and Treason, reprinted in The Law as Literature 220, 225 (L. Blom-Cooper ed. 1961). Petitioner and the Court fail to see the difference between laws that protect public sensibilities and those that enforce private morality. Statutes banning *213 public sexual activity are entirely consistent with protecting the individual’s liberty interest in decisions concerning sexual relations: the same recognition that those decisions are intensely private which justifies protecting them from governmental interference can justify protecting individuals from unwilling exposure to the sexual activities of others. But the mere fact that intimate behavior may be punished when it takes place in public cannot dictate how States can regulate intimate behavior that occurs in intimate places. See Paris Adult Theatre I, 413 U. S., at 66, n. 13 (“marital intercourse on a street corner or a theater stage” can be forbidden despite the constitutional protection identified in Griswold v. Connecticut, 381 U. S. 479 (1965)).7

This case involves no real interference with the rights of others, for the mere knowledge that other individuals do not adhere to one’s value system cannot be a legally cognizable interest, cf. Diamond v. Charles, 476 U. S. 54, 65-66 (1986), let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently.

IV

It took but three years for the Court to see the error in its analysis in Minersville School District v. Gobitis, 310 U. S. *214 586 (1940), and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly outweighed by the threat to those same values posed by compelling such a salute. See West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943). I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent.

1

Until 1968, Georgia defined sodomy as “the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.” Ga. Crim. Code § 26-5901 (1933). In Thompson v. Aldredge, 187 Ga. 467, 200 S. E. 799 (1939), the Georgia Supreme Court held that § 26-5901 did not prohibit lesbian activity. And in Riley v. Garrett, 219 Ga. 345, 133 S. E. 2d 367 (1963), the Georgia Supreme Court held that § 26-5901 did not prohibit heterosexual cunnilingus. Georgia passed the act-specific statute currently in force “perhaps in response to the restrictive court decisions such as Riley,” Note, The Crimes Against Nature, 16 J. Pub. L. 159, 167, n. 47 (1967).

2

In Robinson v. California, 370 U. S. 660 (1962), the Court held that the Eighth Amendment barred convicting a defendant due to his “status” as a narcotics addict, since that condition was “apparently an illness which may be contracted innocently or involuntarily.” Id., at 667. In Powell v. Texas, 392 U. S. 514 (1968), where the Court refused to extend Robinson to punishment of public drunkenness by a chronic alcoholic, one of the factors relied on by JUSTICE MARSHALL, in writing the plurality opinion, was that Texas had not “attempted to regulate appellant’s behavior in the privacy of his own home.” Id., at 532. JUSTICE WHITE wrote separately:

“Analysis of this difficult case is not advanced by preoccupation with the label `condition.’ In Robinson the Court dealt with `a statute which makes the “status” of narcotic addiction a criminal offense . . . .’ 370 U. S., at 666. By precluding criminal conviction for such a `status’ the Court was dealing with a condition brought about by acts remote in time from the application of the criminal sanctions contemplated, a condition which was relatively permanent in duration, and a condition of great magnitude and significance in terms of human behavior and values. . . . If it were necessary to distinguish between `acts’ and `conditions’ for purposes of the Eighth Amendment, I would adhere to the concept of `condition’ implicit in the opinion in Robinson . . . . The proper subject of inquiry is whether volitional acts brought about the `condition’ and whether those acts are sufficiently proximate to the `condition’ for it to be permissible to impose penal sanctions on the `condition.’ ” Id., at 550-551, n. 2.

Despite historical views of homosexuality, it is no longer viewed by mental health professionals as a “disease” or disorder. See Brief for American Psychological Association and American Public Health Association as Amici Curiae 8-11. But, obviously, neither is it simply a matter of deliberate personal election. Homosexual orientation may well form part of the very fiber of an individual’s personality. Consequently, under JUSTICE WHITE’s analysis in Powell, the Eighth Amendment may pose a constitutional barrier to sending an individual to prison for acting on that attraction regardless of the circumstances. An individual’s ability to make constitutionally protected “decisions concerning sexual relations,” Carey v. Population Services International, 431 U. S. 678, 711 (1977) (POWELL, J., concurring in part and concurring in judgment), is rendered empty indeed if he or she is given no real choice but a life without any physical intimacy.

With respect to the Equal Protection Clause’s applicability to § 16-6-2, I note that Georgia’s exclusive stress before this Court on its interest in prosecuting homosexual activity despite the gender-neutral terms of the statute may raise serious questions of discriminatory enforcement, questions that cannot be disposed of before this Court on a motion to dismiss. See Yick Wo v. Hopkins, 118 U. S. 356, 373-374 (1886). The legislature having decided that the sex of the participants is irrelevant to the legality of the acts, I do not see why the State can defend § 16-6-2 on the ground that individuals singled out for prosecution are of the same sex as their partners. Thus, under the circumstances of this case, a claim under the Equal Protection Clause may well be available without having to reach the more controversial question whether homosexuals are a suspect class. See, e. g., Rowland v. Mad River Local School District, 470 U. S. 1009 (1985) (BRENNAN, J., dissenting from denial of certiorari); Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv. L. Rev. 1285 (1985).

3

Even if a court faced with a challenge to § 16-6-2 were to apply simple rational-basis scrutiny to the statute, Georgia would be required to show an actual connection between the forbidden acts and the ill effects it seeks to prevent. The connection between the acts prohibited by § 16-6-2 and the harms identified by petitioner in his brief before this Court is a subject of hot dispute, hardly amenable to dismissal under Federal Rule of Civil Procedure 12(b)(6). Compare, e. g., Brief for Petitioner 36-37 and Brief for David Robinson, Jr., as Amicus Curiae 23-28, on the one hand, with People v. Onofre, 51 N. Y. 2d 476, 489, 415 N. E. 2d 936, 941 (1980); Brief for the Attorney General of the State of New York, joined by the Attorney General of the State of California, as Amici Curiae 11-14; and Brief for the American Psychological Association and American Public Health Association as Amici Curiae 19-27, on the other.

4

Although I do not think it necessary to decide today issues that are not even remotely before us, it does seem to me that a court could find simple, analytically sound distinctions between certain private, consensual sexual conduct, on the one hand, and adultery and incest (the only two vaguely specific “sexual crimes” to which the majority points, ante, at 196), on the other. For example, marriage, in addition to its spiritual aspects, is a civil contract that entitles the contracting parties to a variety of governmentally provided benefits. A State might define the contractual commitment necessary to become eligible for these benefits to include a commitment of fidelity and then punish individuals for breaching that contract. Moreover, a State might conclude that adultery is likely to injure third persons, in particular, spouses and children of persons who engage in extramarital affairs. With respect to incest, a court might well agree with respondent that the nature of familial relationships renders true consent to incestuous activity sufficiently problematical that a blanket prohibition of such activity is warranted. See Tr. of Oral Arg. 21-22. Notably, the Court makes no effort to explain why it has chosen to group private, consensual homosexual activity with adultery and incest rather than with private, consensual heterosexual activity by unmarried persons or, indeed, with oral or anal sex within marriage.

5

The parallel between Loving and this case is almost uncanny. There, too, the State relied on a religious justification for its law. Compare 388 U. S., at 3 (quoting trial court’s statement that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for the races to mix”), with Brief for Petitioner 20-21 (relying on the Old and New Testaments and the writings of St. Thomas Aquinas to show that “traditional Judeo-Christian values proscribe such conduct”). There, too, defenders of the challenged statute relied heavily on the fact that when the Fourteenth Amendment was ratified, most of the States had similar prohibitions. Compare Brief for Appellee in Loving v. Virginia, O. T. 1966, No. 395, pp. 28-29, with ante, at 192-194, and n. 6. There, too, at the time the case came before the Court, many of the States still had criminal statutes concerning the conduct at issue. Compare 388 U. S., at 6, n. 5 (noting that 16 States still outlawed interracial marriage), with ante, at 193-194 (noting that 24 States and the District of Columbia have sodomy statutes). Yet the Court held, not only that the invidious racism of Virginia’s law violated the Equal Protection Clause, see 388 U. S., at 7-12, but also that the law deprived the Lovings of due process by denying them the “freedom of choice to marry” that had “long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Id., at 12.

6

The theological nature of the origin of Anglo-American antisodomy statutes is patent. It was not until 1533 that sodomy was made a secular offense in England. 25 Hen. VIII, ch. 6. Until that time, the offense was, in Sir James Stephen’s words, “merely ecclesiastical.” 2J. Stephen, A History of the Criminal Law of England 429-430 (1883). Pollock and Maitland similarly observed that ”[t]he crime against nature . . . was so closely connected with heresy that the vulgar had but one name for both.” 2 F. Pollock & F. Maitland, The History of English Law 554 (1895). The transfer of jurisdiction over prosecutions for sodomy to the secular courts seems primarily due to the alteration of ecclesiastical jurisdiction attendant on England’s break with the Roman Catholic Church, rather than to any new understanding of the sovereign’s interest in preventing or punishing the behavior involved. Cf. 6 E. Coke, Institutes, ch. 10 (4th ed. 1797).

7

At oral argument a suggestion appeared that, while the Fourth Amendment’s special protection of the home might prevent the State from enforcing § 16-6-2 against individuals who engage in consensual sexual activity there, that protection would not make the statute invalid. See Tr. of Oral Arg. 10-11. The suggestion misses the point entirely. If the law is not invalid, then the police can invade the home to enforce it, provided, of course, that they obtain a determination of probable cause from a neutral magistrate. One of the reasons for the Court’s holding in Griswold v. Connecticut, 381 U. S. 479 (1965), was precisely the possibility, and repugnance, of permitting searches to obtain evidence regarding the use of contraceptives. Id., at 485-486. Permitting the kinds of searches that might be necessary to obtain evidence of the sexual activity banned by § 16-6-2 seems no less intrusive, or repugnant. Cf. Winston v. Lee, 470 U. S. 753 (1985); Mary Beth G. v. City of Chicago, 723 F. 2d 1263, 1274 (CA7 1983).

JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.

Like the statute that is challenged in this case,1 the rationale of the Court’s opinion applies equally to the prohibited conduct regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes.2 Sodomy was condemned as an odious and sinful type of behavior during the formative period of the common law.3 *215 That condemnation was equally damning for heterosexual and homosexual sodomy.4 Moreover, it provided no special exemption for married couples.5 The license to cohabit and to produce legitimate offspring simply did not include any permission to engage in sexual conduct that was considered a “crime against nature.”

The history of the Georgia statute before us clearly reveals this traditional prohibition of heterosexual, as well as homosexual, sodomy.6 Indeed, at one point in the 20th century, Georgia’s law was construed to permit certain sexual conduct between homosexual women even though such conduct was prohibited between heterosexuals.7 The history of the statutes cited by the majority as proof for the proposition that sodomy is not constitutionally protected, ante, at 192-194, *216 and nn. 5 and 6, similarly reveals a prohibition on heterosexual, as well as homosexual, sodomy.8

Because the Georgia statute expresses the traditional view that sodomy is an immoral kind of conduct regardless of the identity of the persons who engage in it, I believe that a proper analysis of its constitutionality requires consideration of two questions: First, may a State totally prohibit the described conduct by means of a neutral law applying without exception to all persons subject to its jurisdiction? If not, may the State save the statute by announcing that it will only enforce the law against homosexuals? The two questions merit separate discussion.

I

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.9 Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut, 381 U. S. 479 (1965). Moreover, this protection extends to intimate choices by unmarried as well as married persons. Carey v. Population Services International, 431 U. S. 678 (1977); Eisenstadt v. Baird, 405 U. S. 438 (1972).

*217 In consideration of claims of this kind, the Court has emphasized the individual interest in privacy, but its decisions have actually been animated by an even more fundamental concern. As I wrote some years ago:

“These cases do not deal with the individual’s interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual’s right to make certain unusually important decisions that will affect his own, or his family’s destiny. The Court has referred to such decisions as implicating `basic values,’ as being `fundamental,’ and as being dignified by history and tradition. The character of the Court’s language in these cases brings to mind the origins of the American heritage of freedom — the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases.” Fitzgerald v. Porter Memorial Hospital, 523 F. 2d 716, 719-720 (CA7 1975) (footnotes omitted), cert. denied, 425 U. S. 916 (1976).

Society has every right to encourage its individual members to follow particular traditions in expressing affection for one another and in gratifying their personal desires. It, of course, may prohibit an individual from imposing his will on another to satisfy his own selfish interests. It also may prevent an individual from interfering with, or violating, a legally sanctioned and protected relationship, such as marriage. And it may explain the relative advantages and disadvantages of different forms of intimate expression. But when individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them — not the *218 State — to decide.10 The essential “liberty” that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral.

Paradoxical as it may seem, our prior cases thus establish that a State may not prohibit sodomy within “the sacred precincts of marital bedrooms,” Griswold, 381 U. S., at 485, or, indeed, between unmarried heterosexual adults. Eisenstadt, 405 U. S., at 453. In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by § 16-6-2 of the Georgia Criminal Code.

II

If the Georgia statute cannot be enforced as it is written — if the conduct it seeks to prohibit is a protected form of liberty for the vast majority of Georgia’s citizens — the State must assume the burden of justifying a selective application of its law. Either the persons to whom Georgia seeks to apply its statute do not have the same interest in “liberty” that others have, or there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others.

The first possibility is plainly unacceptable. Although the meaning of the principle that “all men are created equal” is not always clear, it surely must mean that every free citizen has the same interest in “liberty” that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary *219 associations with his companions. State intrusion into the private conduct of either is equally burdensome.

The second possibility is similarly unacceptable. A policy of selective application must be supported by a neutral and legitimate interest — something more substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has identified any such interest in this case. The Court has posited as a justification for the Georgia statute “the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.” Ante, at 196. But the Georgia electorate has expressed no such belief — instead, its representatives enacted a law that presumably reflects the belief that all sodomy is immoral and unacceptable. Unless the Court is prepared to conclude that such a law is constitutional, it may not rely on the work product of the Georgia Legislature to support its holding. For the Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment.

Nor, indeed, does not Georgia prosecutor even believe that all homosexuals who violate this statute should be punished. This conclusion is evident from the fact that the respondent in this very case has formally acknowledged in his complaint and in court that he has engaged, and intends to continue to engage, in the prohibited conduct, yet the State has elected not to process criminal charges against him. As JUSTICE POWELL points out, moreover, Georgia’s prohibition on private, consensual sodomy has not been enforced for decades.11 The record of nonenforcement, in this case and in the last several decades, belies the Attorney General’s representations *220 about the importance of the State’s selective application of its generally applicable law.12

Both the Georgia statute and the Georgia prosecutor thus completely fail to provide the Court with any support for the conclusion that homosexual sodomy, simpliciter, is considered unacceptable conduct in that State, and that the burden of justifying a selective application of the generally applicable law has been met.

III

The Court orders the dismissal of respondent’s complaint even though the State’s statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the State’s post hoc explanations for selective application are belied by the State’s own actions. At the very least, I think it clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss.13

I respectfully dissent.

1

See Ga. Code Ann. § 16-6-2(a) (1984) (“A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another”).

2

The Court states that the “issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Ante, at 190. In reality, however, it is the indiscriminate prohibition of sodomy, heterosexual as well as homosexual, that has been present “for a very long time.” See nn. 3, 4, and 5, infra. Moreover, the reasoning the Court employs would provide the same support for the statute as it is written as it does for the statute as it is narrowly construed by the Court.

3

See, e. g., 1 W. Hawkins, Pleas of the Crown 9 (6th ed. 1787) (“All unnatural carnal copulations, whether with man or beast, seem to come under the notion of sodomy, which was felony by the antient common law, and punished, according to some authors, with burning; according to others, with burying alive”); 4 W. Blackstone, Commentaries *215 (discussing “the infamous crime against nature, committed either with man or beast; a crime which ought to be strictly and impartially proved, and then as strictly and impartially punished”).

4

See 1 E. East, Pleas of the Crown 480 (1803) (“This offence, concerning which the least notice is the best, consists in a carnal knowledge committed against the order of nature by man with man, or in the same unnatural manner with woman, or by man or woman in any manner with beast”); J. Hawley & M. McGregor, The Criminal Law 287 (3d ed. 1899) (“Sodomy is the carnal knowledge against the order of nature by two persons with each other, or of a human being with a beast. . . . The offense may be committed between a man and a woman, or between two male persons, or between a man or a woman and a beast”).

5

See J. May, The Law of Crimes § 203 (2d ed. 1893) (“Sodomy, otherwise called buggery, bestiality, and the crime against nature, is the unnatural copulation of two persons with each other, or of a human being with a beast. . . . It may be committed by a man with a man, by a man with a beast, or by a woman with a beast, or by a man with a woman — his wife, in which case, if she consent, she is an accomplice”).

6

The predecessor of the current Georgia statute provided: “Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.” Ga. Code, Tit. 1, Pt. 4, § 4251 (1861). This prohibition of heterosexual sodomy was not purely hortatory. See, e. g., Comer v. State, 21 Ga. App. 306, 94 S. E. 314 (1917) (affirming prosecution for consensual heterosexual sodomy).

7

See Thompson v. Aldredge, 187 Ga. 467, 200 S. E. 799 (1939).

8

A review of the statutes cited by the majority discloses that, in 1791, in 1868, and today, the vast majority of sodomy statutes do not differentiate between homosexual and heterosexual sodomy.

9

See Loving v. Virginia, 388 U. S. 1 (1967). Interestingly, miscegenation was once treated as a crime similar to sodomy. See Hawley & McGregor, The Criminal Law, at 287 (discussing crime of sodomy); id., at 288 (discussing crime of miscegenation).

10

Indeed, the Georgia Attorney General concedes that Georgia’s statute would be unconstitutional if applied to a married couple. See Tr. of Oral Arg. 8 (stating that application of the statute to a married couple “would be unconstitutional” because of the “right of marital privacy as identified by the Court in Griswold”). Significantly, Georgia passed the current statute three years after the Court’s decision in Griswold.

11

Ante, at 198, n. 2 (POWELL, J., concurring). See also Tr. of Oral Arg. 4-5 (argument of Georgia Attorney General) (noting, in response to question about prosecution “where the activity took place in a private residence,” the “last case I can recall was back in the 1930’s or 40’s”).

12

It is, of course, possible to argue that a statute has a purely symbolic role. Cf. Carey v. Population Services International, 431 U. S. 678, 715, n. 3 (1977) (STEVENS, J., concurring in part and concurring in judgment) (“The fact that the State admittedly has never brought a prosecution under the statute . . . is consistent with appellants’ position that the purpose of the statute is merely symbolic”). Since the Georgia Attorney General does not even defend the statute as written, however, see n. 10, supra, the State cannot possibly rest on the notion that the statute may be defended for its symbolic message.

13

Indeed, at this stage, it appears that the statute indiscriminately authorizes a policy of selective prosecution that is neither limited to the class of homosexual persons nor embraces all persons in that class, but rather applies to those who may be arbitrarily selected by the prosecutor for reasons that are not revealed either in the record of this case or in the text of the statute. If that is true, although the text of the statute is clear enough, its true meaning may be “so intolerably vague that evenhanded enforcement of the law is a virtual impossibility.” Marks v. United States, 430 U. S. 188, 198 (1977) (STEVENS, J., concurring in part and dissenting in part).

John Geddes Lawrence and Tyron Garner, Petitioners, v. Texas.

Argued March 26, 2003.

Decided June 26, 2003.

CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT

*559 *560 *561 KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a dissenting opinion, post, p. 605.

Paul M. Smith argued the cause for petitioners. With him on the briefs were William M. Hohengarten, Daniel Mach, Mitchell Katine, Ruth E. Harlow, Patricia M. Logue, and Susan L. Sommer.

Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brief were William J. Delmore III and Scott A. Durfee.*

*

Briefs of amici curiae urging reversal were filed for the Alliance of Baptists et al. by Robert A. Long, Jr., and Thomas L. Cubbage III; for the American Psychological Association et al. by David W. Ogden, Paul R. Q. Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Polowy; for the American Public Health Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cato Institute by Robert A. Levy; for Constitutional Law Professors by Pamela S. Karlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by David C. Codell, Laura W. Brill, and Wendy R. Weiser; for Professors of History by Roy T. Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and Joseph F. Tringali.

Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and George M. Weaver, and by the Attorneys General for their respective States as follows: Henry D. McMaster of South Carolina and Mark L. Shurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the American Family Association, Inc., et al. by Stephen M. Crampton, Brian Fahling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for the Center for Law and Justice International by Thomas Patrick Monaghan and John P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center for the Original Intent of the Constitution by Michael P. Farris and Jordan W. Lorence; for Concerned Women for America by Janet M. LaRue; for the Family Research Council, Inc., by Robert P. George; for First Principles, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public Advocate of the United States et al. by Herbert W. Titus and William J. Olson; for the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physicians Resource Council et al. by Glen Lavy; and for United Families International by Paul Benjamin Linton.

Briefs of amici curiae were filed for the American Bar Association by Alfred P. Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for the American Civil Liberties Union et al. by Laurence H. Tribe, James D. Esseks, Steven R. Shapiro, and Matthew A. Coles; for the Institute for Justice by William H. Mellor, Clint Bolick, Dana Berliner, and Randy E. Barnett; and for the National Lesbian and Gay Law Association et al. by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-Kidd.

*562 JUSTICE KENNEDY delivered the opinion of the Court.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

I

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, *563 resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.

The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows:

"(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or   "(B) the penetration of the genitals or the anus of another person with an object." § 21.01(1).

The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.

The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.

*564 We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:

1. Whether petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws.   2. Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.   3. Whether Bowers v. Hardwick, supra, should be overruled? See Pet. for Cert. i.

The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

II

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers.

There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965).

In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and *565 placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485.

After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:

"It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453.

The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.

*566 In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.

The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J.,joined by Brennan and Marshall, JJ.).

The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so *567 for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions *568 in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e. g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of *569 homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.

To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic *570 punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.

The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18.

It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e. g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, *571 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. § 201.193).

In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).

Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards." 478 U. S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of *572 most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).

This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code § 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16.

In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct").

The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws *573 punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1.

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed *574 that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude *575 the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. 84 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§ 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. §§ 15:540-15:549 *576 (West 2003); Miss. Code Ann. §§ 45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§ 23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.

The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary *577 Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it `is a principle of policy and not a mechanical formula of adherence to the latest decision' " (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional *578 attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of `liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).

JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here.

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume *579 to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE O'CONNOR, concurring in the judgment.

The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause.

The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992).

Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the *580 democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "`discriminate against hippies.'" 413 U. S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences—like fraternity houses and apartment buildings—did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"—specifically, homosexuals. 517 U. S., at 632.

*581 The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06.

The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under § 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. It appears that petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e. g., Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251(a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e. g., Idaho Code § 18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code Ann. § 45-33-25 (West 2003); S. C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. ante, at 575-576.

And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas *582 itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992).

Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished.

This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.

*583 Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Id., at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id., at 634.

Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id., at 641 (SCALIA, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575.

Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" *584 "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U. S., at 633. The same is true here. The Equal Protection Clause "`neither knows nor tolerates classes among citizens.'" Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting)).

A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass . . . cannot be reconciled with" the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).

Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a *585 law would not long stand in our democratic society. In the words of Justice Jackson:

"The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.

*586 JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.

"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.

Most of the rest of today's opinion has no relevance to its actual holding—that the Texas statute "furthers no legitimate state interest which can justify" its application to petitioners under rational-basis review. Ante, at 578 (overruling Bowers to the extent it sustained Georgia's antisodomy statute under the rational-basis test). Though there is discussion of "fundamental proposition[s]," ante, at 565, and "fundamental decisions," ibid., nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U. S., at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"—which it undoubtedly is—and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 564.

I

I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. *587 I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention— the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:

"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire in the absence of the most compelling reason . . . would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.

Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 576-577. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven `unworkable,'" Casey, supra, at 855.

Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "ero[ded]" by subsequent decisions, ante, at 576; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 577. The problem is that Roe itself—which today's majority surely has no disposition to overrule—satisfies these conditions to at least the same degree as Bowers.

*588 (1) A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 571. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 574 ("`At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'"): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.

I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620 (1996), "eroded" the "foundations" of Bowers' rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting). But Roe and Casey have been equally "eroded" by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are "`deeply rooted in this Nation's history and tradition' " qualify for anything other than rational-basis scrutiny under the doctrine of "substantive due process." Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition.

(2) Bowers, the Court says, has been subject to "substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions." Ante, at 576. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left *589 unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution —A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).1 Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court's] opinion in Roe... fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]").

(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding...." Ante, at 577. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality . . . rather than confined *590 to preventing demonstrable harms"); Holmes v. California Army National Guard, 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid. (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U. S., at 196.2

*591 What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of, and restrictions upon, abortion were determined legislatively State by State. Casey, however, chose to base its stare decisis determination on a different "sort" of reliance. "[P]eople," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 U. S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted *592 the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.

To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.

II

Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.

Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 567 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 574 ("`These matters . . . are central to the liberty protected by the Fourteenth Amendment' "); ante, at 578 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:

"No state shall . . . deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added).

*593 Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection—that is, rights which are "`deeply rooted in this Nation's history and tradition,'" ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[W]e have insisted not merely that the interest denominated as a `liberty' be `fundamental' . . . but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.

*594 Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id., at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not "`deeply rooted in this Nation's history and tradition,'" id., at 192.

The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is "`deeply rooted in this Nation's history and tradition,'" the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 578.

I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"—even though, as I have said, the Court does not have the boldness to reverse that conclusion.

III

The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante, at 566. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due *595 process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972), likewise had nothing to do with "substantive due process"; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well-known dictum relating to the "right to privacy," but this referred to the right recognized in Griswold —a right penumbral to the specific guarantees in the Bill of Rights, and not a "substantive due process" right.

Roe v. Wade recognized that the right to abort an unborn child was a "fundamental right" protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was "`deeply rooted in this Nation's history and tradition' "; instead, it based its conclusion that "the Fourteenth Amendment's concept of personal liberty . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" on its own normative judgment that antiabortion laws were undesirable. See id., at 153. We have since rejected Roe's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); id., at 951-953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part)—and thus, by logical implication, Roe's holding that the right to abort an unborn child is a "fundamental right." See 505 U. S., at 843-912 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a "fundamental right" or a "fundamental liberty interest").

After discussing the history of antisodomy laws, ante, at 568-571, the Court proclaims that, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," ante, *596 at 568. This observation in no way casts into doubt the "definitive [historical] conclusio[n]," ibid., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general—regardless of whether it was performed by same-sex or opposite-sex couples:

"It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is `deeply rooted in this Nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious." 478 U. S., at 192-194 (citations and footnotes omitted; emphasis added).

It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were "directed at homosexual conduct as a distinct matter." Ante, at 568. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition." The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.

*597 Next the Court makes the claim, again unsupported by any citations, that "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." Ante, at 569. The key qualifier here is "acting in private"—since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were "infrequen[t]," ibid.). I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by "acting in private" is "on private premises, with the doors closed and windows covered," it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a "fundamental right," even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that homosexual sodomy is not a fundamental right "deeply rooted in this Nation's history and tradition" is utterly unassailable.

Realizing that fact, the Court instead says: "[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Ante, at 571-572 (emphasis *598 added). Apart from the fact that such an "emerging awareness" does not establish a "fundamental right," the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced "in the past half century," in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the American Law Institute's 1955 recommendation not to criminalize "`consensual sexual relations conducted in private,'" ante, at 572, the Court ignores the fact that this recommendation was "a point of resistance in most of the states that considered adopting the Model Penal Code." Gaylaw 159.

In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," ante, at 576, but rather rejected the claimed right to sodomy on the ground that such a right was not "`deeply rooted in this Nation's history and tradition,'" 478 U. S., at 193-194 (emphasis added). Bowers' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization," see id., at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court... should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).

*599

IV

I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 578 (emphasis added). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "`the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,'" ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

V

Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save Justice O'Connor, ante, at 579 (opinion concurring in judgment), embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual *600 acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.

The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers —society's belief that certain forms of sexual behavior are "immoral and unacceptable," 478 U. S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner—for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.

JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

"While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. *601 It is instead directed toward gay persons as a class." Ante, at 583.

Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

JUSTICE O'CONNOR simply decrees application of "a more searching form of rational basis review" to the Texas statute. Ante, at 580. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448-450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does JUSTICE O'CONNOR explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting "a desire to harm a politically unpopular group," ante, at 580, are invalid even though there may be a conceivable rational basis to support them.

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. JUSTICE O'CONNOR seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 585. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR *602 has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).

* * *

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that *603 culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the Armed Forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000).

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 579; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made *604 by the people, and not imposed by a governing caste that knows best.

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence —the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 578. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 574 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 578; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen *605 sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 567; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.

1

This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343.

2

While the Court does not overrule Bowers' holding that homosexual sodomy is not a "fundamental right," it is worth noting that the "societal reliance" upon that aspect of the decision has been substantial as well. See 10 U. S. C. § 654(b)(1) ("A member of the armed forces shall be separated from the armed forces . . . if . . . the member has engaged in . . . a homosexual act or acts"); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent's claimed "fundamental liberty interes[t]" in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual's discharge from the armed services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's claimed "fundamental" interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a "fundamental right"); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers' holding that homosexual activity is not a fundamental right in rejecting—on the basis of the rational-basis standard—an equal protection challenge to the Defense Department's policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearances).

3

The Court is quite right that "`[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry,'" ante, at 572. An asserted "fundamental liberty interest" must not only be "`deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be "`implicit in the concept of ordered liberty,'" so that "`neither liberty nor justice would exist if [it] were sacrificed,'" ibid.Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.

JUSTICE THOMAS, dissenting.

I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases `agreeably to the Constitution and laws of the United States.'" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the *606 Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 562.

Planned Parenthood of Southern Pennsylvania et al. v. Casey, Governor of Pennsylvania, et al.

Argued April 22, 1992.

Decided June 29, 1992.*

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

 O'Connor, Kennedy, and Souter, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V—A, V—C, and VI, in which Blackmun and Stevens, JJ., joined, an opinion with respect to Part V—E, in which Stevens, J., joined, and an opinion with respect to Parts IV, V—B, and V—D. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 911. Blackmun, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, post, p. 922. Rehnquist, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which *842 White, Scalia, and Thomas, JJ., joined, post, p. 944. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and White and Thomas, JJ., joined, post, p. 979.

Kathryn Kolbert argued the cause for petitioners in No. 91-744 and respondents in No. 91-902. With her on the briefs were Janet Benshoof, Lynn M. Paltrow, Rachael N. Pine, Steven R. Shapiro, John A. Powell, Linda J. Wharton, and Carol E. Tracy.

Ernest D. Preate, Jr., Attorney General of Pennsylvania, argued the cause for respondents in No. 91-744 and petitioners in No. 91-902. With him on the brief were John G. Knorr III, Chief Deputy Attorney General, and Kate L. Mershimer,Senior Deputy Attorney General.

Solicitor General Starr argued the cause for the United States as amicus curiae in support of respondents in No. 91-744 and petitioners in No. 91-902. With him on the brief were Assistant Attorney General Gerson, Paul J. Larkin, Jr., Thomas G. Hungar, and Alfred R. Mollin.†

*

 Together with No. 91-902, Casey, Governor of Pennsylvania, et al. v. Planned Parenthood of Southeastern Pennsylvania et al., also on certiorari to the same court.

†

 Briefs of amici curiae were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, Mary Ellen Burns, Chief Assistant Attorney General, and Sanford M. Cohen, Donna I. Dennis, Marjorie Fujiki, and Shelley B. Mayer, Assistant Attorneys General, and John McKernan, Governor of Maine, and Michael E. Carpenter, Attorney General, Richard Blumenthal, Attorney General of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Warren Price III, Attorney General of Hawaii, Roland W. Burris, Attorney General of Illinois, Bonnie J. Campbell, Attorney General of Iowa, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, James E. O'Neil, Attorney General of Rhode Island, Dan Morales, Attorney General of Texas, Jeffrey L. Amestoy, Attorney General of Vermont, and John Payton, Corporation Counsel of District of Columbia; for the State of Utah by R. Paul Van Dam, Attorney General, and Mary Anne Q. Wood, Special Assistant Attorney General; for the City of New York et al. by O. Peter Sherwood, Conrad Harper, Janice Goodman, Leonard J. Koerner, Lorna Bade Goodman, Gail Rubin, and Julie Mertus; for 178 Organizations by Pamela S. Karlan and Sarah Weddington; for Agudath Israel of America by David Zwiebel; for the Alan Guttmacher Institute et al. by Colleen K. Connell and Dorothy B. Zimbrakos; for the American Academy of Medical Ethics by Joseph W. Dellapenna; for the American Association of Prolife Obstetricians and Gynecologists et al. by William Bentley Ball, Philip J. Murren, and Maura K. Quinlan; for the American College of Obstetricians and Gynecologists et al. by Carter G. Phillips, Ann E. Allen, Laurie R. Rockett, Joel I. Klein, Nadine Taub, and Sarah C. Carey; for the American Psychological Association by David W. Ogden; for Texas Black Americans for Life by Lawrence J. Joyce and Craig H. Greenwood; for Catholics United for Life et al. by Thomas Patrick Monaghan, Jay Alan Sekulow, Walter M. Weber, Thomas A. Glessner, Charles E. Rice, and Michael J. Laird; for the Elliot Institute for Social Sciences Research by Stephen R. Kaufmann; for Feminists for Life of America et al. by Keith A. Fournier, John G. Stepanovich, Christine Smith Torre, Theodore H. Amshoff, Jr., and Mary Dice Grenen; for Focus on the Family et al. by Stephen H. Galebach, Gregory J. Granitto, Stephen W. Reed, David L. Llewellyn, Jr., Benjamin W. Bull, and Leonard J. Pranschke; for the Knights of Columbus by Carl A. Anderson; for the Life Issues Institute by James Bopp, Jr., and Richard E. Coleson; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius L. Chambers, Ronald L. Ellis, and Alice L. Brown; for the National Legal Foundation by Robert K. Skolrood; for National Right to Life, Inc., by Messrs. Bopp and Coleson, Robert A. Destro, and A. Eric Johnston; for the Pennsylvania Coalition Against Domestic Violence et al. by Phyllis Gelman; for the Rutherford Institute et al. by Thomas W. Strahan, John W. Whitehead, Mr. Johnston, Stephen E. Hurst, Joseph Secola, Thomas S. Neuberger, J. Brian Heller, Amy Dougherty, Stanley R. Jones, David Melton, Robert R. Melnick, William Bonner, W. Charles Bundren, and James Knicely; for the Southern Center for Law & Ethics by Tony G. Miller; for the United States Catholic Conference et al. by Mark E. Chopko, Phillip H. Harris, Michael K. Whitehead, and Forest D. Montgomery; for University Faculty for Life by Clarke D. Forsythe and Victor G. Rosenblum;for Certain American State Legislators by Paul Benjamin Linton; for 19 Arizona Legislators by Ronald D. Maines; for Representative Henry J. Hyde et al. by Albert P. Blaustein and Kevin J. Todd; for Representative Don Edwards et al. by Walter Dellinger and Lloyd N. Cutler; and for 250 American Historians by Sylvia A. Law.

*843 Justice O'Connor, Justice Kennedy, and Justice Souter announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V—A, *844 V—C, and VI, an opinion with respect to Part V—E, in which Justice Stevens joins, and an opinion with respect to Parts IV, V—B, and V—D.

I

Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U. S. 113 (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8.

At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. §§ 3203-3220 (1990). Relevant portions of the Act are set forth in the Appendix. Infra, at 902. The Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. § 3205. For a minor to obtain an abortion, the Act requires the informed consent of one of her parents, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent's consent. § 3206. Another provision of the Act requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion. § 3209. The Act exempts compliance with these three requirements in the event of a "medical emergency," which is defined in § 3203 of the Act. See §§ 3203, 3205(a), 3206(a), 3209(c). In addition to the above provisions regulating the performance of abortions, the Act imposes certain reporting requirements on facilities that provide abortion services. §§ 3207(b), 3214(a), 3214(f).

*845 Before any of these provisions took effect, the petitioners, who are five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services, brought this suit seeking declaratory and injunctive relief. Each provision was challenged as unconstitutional on its face. The District Court entered a preliminary injunction against the enforcement of the regulations, and, after a 3-day bench trial, held all the provisions at issue here unconstitutional, entering a permanent injunction against Pennsylvania's enforcement of them. 744 F. Supp. 1323 (ED Pa. 1990). The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement. 947 F. 2d 682 (1991). We granted certiorari. 502 U. S. 1056 (1992).

The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional standards. See 947 F. 2d, at 687— 698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions after Roe cast doubt upon the meaning and reach of its holding. Further, The Chief Justice admits that he would overrule the central holding ofRoe and adopt the rational relationship test as the sole criterion of constitutionality. See post, at 944, 966. State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.

After considering the fundamental constitutional questions resolved by Roe,principles of institutional integrity, *846 and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.

It must be stated at the outset and with clarity that Roe `s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

II

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U. S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U. S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed, "[d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth *847Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States." Whitney v. California, 274 U. S. 357, 373 (1927) (concurring opinion). "[T]he guaranties of due process, though having their roots in Magna Carta's `per legem terrae' and considered as procedural safeguards `against executive usurpation and tyranny,' have in this country `become bulwarks also against arbitrary legislation.' " Poe v. Ullman, 367 U. S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U. S. 516, 532 (1884)).

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e. g., Duncan v. Louisiana, 391 U. S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution. See Adamson v. California, 332 U. S. 46, 68-92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.

It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491 U. S. 110, 127-128, n. 6 (1989) (opinion of Scalia, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal *848 in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U. S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U. S. 78, 94-99 (1987); in Carey v. Population Services International, 431 U. S. 678, 684-686 (1977); in Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id., at 486-488 (Goldberg, J., joined by Warren, C. J., and Brennan, J., concurring) (expressly relying on due process), id., at 500-502 (Harlan, J., concurring in judgment) (same), id., at 502-507 (White, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); and in Meyer v. Nebraska, 262 U. S. 390, 399-403 (1923).

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amdt. 9. As the second Justice Harlan recognized:

"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. *849 Ullman, supra, at 543 (opinion dissenting from dismissal on jurisdictional grounds).

Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U. S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U. S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e. g., Washington v. Harper, 494 U. S. 210, 221-222 (1990); Winstonv. Lee, 470 U. S. 753 (1985); Rochin v. California, 342 U. S. 165 (1952).

The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed:

"Due process has not been reduced to any formula; its content cannot be determined by reference to any code.

*850 The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint." Poe v. Ullman, 367 U. S., at 542 (opinion dissenting from dismissal on jurisdictional grounds).

See also Rochin v. California, supra, at 171-172 (Frankfurter, J., writing for the Court) ("To believe that this judicial exercise of judgment could be avoided by freezing `due process of law' at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges").

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps *851 in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.

It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. See, e. g., Ferguson v. Skrupa,372 U. S. 726 (1963); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other. See West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943); Texas v. Johnson, 491 U. S. 397 (1989).

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U. S., at 685. Our cases recognize "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, supra, at 453(emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U. S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

*852 These considerations begin our analysis of the woman's interest in terminating her pregnancy but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International afford constitutional protection. We have no doubt as to the correctness of those decisions. They support *853 the reasoning in Roe relating to the woman's liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters. One view is based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term no matter how difficult it will be to provide for the child and ensure its well-being. Another is that the inability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to the parent. These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Griswold, Eisenstadt, and Carey. The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant.

It was this dimension of personal liberty that Roe sought to protect, and its holding invoked the reasoning and the tradition of the precedents we have discussed, granting protection to substantive liberties of the person. Roe was, of course, an extension of those cases and, as the decision itself indicated, the separate States could act in some degree to further their own legitimate interests in protecting prenatal life. The extent to which the legislatures of the States might act to outweigh the interests of the woman in choosing to terminate her pregnancy was a subject of debate both in Roe itself and in decisions following it.

While we appreciate the weight of the arguments made on behalf of the State in the cases before us, arguments which in their ultimate formulation conclude that Roe should be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis. We turn now to that doctrine.

*854 III

A

The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.

Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisisis not an "inexorable command," and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405-411 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee, 501 U. S. 808, 842 (1991) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U. S. 203, 212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965); whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e. g., United States v. Title Ins. & Trust *855Co., 265 U. S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U. S. 164, 173-174 (1989); or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification, e. g., Burnet, supra, at 412 (Brandeis, J., dissenting).

So in this case we may enquire whether Roe `s central rule has been found unworkable; whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism discounted by society; and whether Roe `s premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.

1

Although Roe has engendered opposition, it has in no sense proven "unworkable," see Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546 (1985), representing as it does a simple limitation beyond which a state law is unenforceable. While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today's decision, the required determinations fall within judicial competence.

2

The inquiry into reliance counts the cost of a rule's repudiation as it would fall on those who have relied reasonably on the rule's continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, see Payne v. Tennes- *856 see, supra, at 828, where advance planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of Roe.

While neither respondents nor their amici in so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine an argument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe`s holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.

To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e. g., R. Petchesky, Abortion and Woman's Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.

*857 3

No evolution of legal principle has left Roe `s doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.

It will be recognized, of course, that Roe stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. Connecticut, 381 U. S. 479 (1965). See Roe, 410 U. S., at 152-153. When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e. g., Carey v. Population Services International, 431 U. S. 678 (1977); Moore v. East Cleveland, 431 U. S. 494 (1977).

Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe `s view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990); cf., e. g., Riggins v. Nevada, 504 U. S. 127, 135 (1992); Washington v. Harper, 494 U. S. 210 (1990); see also, e. g., Rochin v. California, 342 U. S. 165 (1952); Jacobson v. Massachusetts, 197 U. S. 11, 24-30 (1905).

Finally, one could classify Roe as sui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the *858 concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 1983, see Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (Akron I), and by a majority of five in 1986, see Thornburgh v. American College of Obstetricians and Gynecologists,476 U. S. 747, expressing adherence to the constitutional ruling despite legislative efforts in some States to test its limits. More recently, in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today, see id., at 518 (Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at 529 (O'Connor, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. See Webster, 492 U. S., at 521 (Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at 525-526 (O'Connor, J., concurring in part and concurring in judgment); id., at 537, 553 (Blackmun, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); id., at 561-563 (Stevens, J., concurring in part and dissenting in part).

Nor will courts building upon Roe be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty. The latter aspect of the decision fits comfortably within the framework of the Court's prior decisions, including Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); Griswold, supra; Loving v. Virginia, 388 U. S. 1 (1967); and Eisenstadt v. Baird,405 U. S. 438 (1972), the holdings of which are "not a series of isolated points," but mark a "rational continuum." Poe v. Ullman, 367 U. S., at 543 (Harlan, J., dissenting). As we described in *859 Carey v. Population Services International, supra, the liberty which encompasses those decisions

"includes `the interest in independence in making certain kinds of important decisions.' While the outer limits of this aspect of [protected liberty] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions `relating to marriage, procreation, contraception, family relationships, and child rearing and education.' " 431 U. S., at 684-685 (citations omitted).

The soundness of this prong of the Roe analysis is apparent from a consideration of the alternative. If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. E. g., Arnold v. Board of Education of Escambia County, Ala., 880 F. 2d 305, 311 (CA11 1989)(relying upon Roe and concluding that government officials violate the Constitution by coercing a minor to have an abortion); Avery v. County of Burke, 660 F. 2d 111, 115 (CA4 1981) (county agency inducing teenage girl to undergo unwanted sterilization on the basis of misrepresentation that she had sickle cell trait); see also In re Quinlan, 70 N. J. 10, 355 A. 2d 647 (relying on Roe in finding a right to terminate medical treatment), cert. denied sub nom. Garger v. New Jersey, 429 U. S. 922 (1976)). In any event, because Roe `s scope is confined by the fact of its concern with postconception potential life, a concern otherwise likely to be implicated only by some forms of contraception protected independently under Griswold and later cases, any error in Roe is unlikely to have serious ramifications in future cases.

*860 4

We have seen how time has overtaken some of Roe `s factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, see Akron I, supra, at 429, n. 11, and advances in neonatal care have advanced viability to a point somewhat earlier. Compare Roe, 410 U. S., at 160, with Webster, supra, at 515-516 (opinion of Rehnquist, C. J.); see Akron I, 462 U. S., at 457, and n. 5 (O'Connor, J., dissenting). But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe `s central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe `s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.

5

The sum of the precedential enquiry to this point shows Roe `s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe `s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe `s central holding a doctrinal remnant; *861 Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe `s central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.

B

In a less significant case, stare decisis analysis could, and would, stop at the point we have reached. But the sustained and widespread debate Roe has provoked calls for some comparison between that case and others of comparable dimension that have responded to national controversies and taken on the impress of the controversies addressed. Only two such decisional lines from the past century present themselves for examination, and in each instance the result reached by the Court accorded with the principles we apply today.

The first example is that line of cases identified with Lochner v. New York, 198 U. S. 45 (1905), which imposed substantive limitations on legislation limiting economic autonomy in favor of health and welfare regulation, adopting, in Justice Holmes's view, the theory of laissez-faire. Id., at 75 (dissenting opinion). The Lochner decisions were exemplified by Adkins v. Children's Hospital of District of Columbia, 261 U. S. 525 (1923), in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), signaled the demise of Lochner by overruling Adkins. In the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected in Adkins rested on fundamentally *862 false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. See West Coast Hotel Co., supra, at 399. As Justice Jackson wrote of the constitutional crisis of 1937 shortly before he came on the bench: "The older world of laissez faire was recognized everywhere outside the Court to be dead." The Struggle for Judicial Supremacy 85 (1941). The facts upon which the earlier case had premised a constitutional resolution of social controversy had proven to be untrue, and history's demonstration of their untruth not only justified but required the new choice of constitutional principle that West Coast Hotel announced. Of course, it was true that the Court lost something by its misperception, or its lack of prescience, and the Court-packing crisis only magnified the loss; but the clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law.

The second comparison that 20th century history invites is with the cases employing the separate-but-equal rule for applying the Fourteenth Amendment's equal protection guarantee. They began with Plessy v. Ferguson, 163 U. S. 537 (1896), holding that legislatively mandated racial segregation in public transportation works no denial of equal protection, rejecting the argument that racial separation enforced by the legal machinery of American society treats the black race as inferior. The Plessy Court considered "the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." Id., at 551. Whether, as a matter of historical fact, the Justices in the Plessy majority believed this or not, see id., at 557, 562 (Harlan, J., dissenting), this understanding of the implication of segregation was the stated justification for the Court's opinion. But this understanding of *863 the facts and the rule it was stated to justify were repudiated in Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I). As one commentator observed, the question before the Court in Brown was "whether discrimination inheres in that segregation which is imposed by law in the twentieth century in certain specific states in the American Union. And that question has meaning and can find an answer only on the ground of history and of common knowledge about the facts of life in the times and places aforesaid." Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 427 (1960).

The Court in Brown addressed these facts of life by observing that whatever may have been the understanding in Plessy `s time of the power of segregation to stigmatize those who were segregated with a "badge of inferiority," it was clear by 1954 that legally sanctioned segregation had just such an effect, to the point that racially separate public educational facilities were deemed inherently unequal. 347 U. S., at 494-495. Society's understanding of the facts upon which a constitutional ruling was sought in 1954 was thus fundamentally different from the basis claimed for the decision in 1896. While we think Plessy was wrong the day it was decided, see Plessy, supra, at 552-564 (Harlan, J., dissenting), we must also recognize that the Plessy Court's explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justified but required.

West Coast Hotel and Brown each rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions. Each case was comprehensible as the Court's response to facts that the country could understand, or had come to understand already, but which the Court of an earlier day, as its own declarations disclosed, had not been able to perceive. As the decisions were thus comprehensible *864 they were also defensible, not merely as the victories of one doctrinal school over another by dint of numbers (victories though they were), but as applications of constitutional principle to facts as they had not been seen by the Court before. In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty.

Because the cases before us present no such occasion it could be seen as no such response. Because neither the factual underpinnings of Roe `s central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. See, e. g., Mitchell v. W. T. Grant Co.,416 U. S. 600, 636 (1974) (Stewart, J., dissenting) ("A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve"); Mapp v. Ohio, 367 U. S. 643, 677 (1961) (Harlan, J., dissenting).

C

The examination of the conditions justifying the repudiation of Adkins by West Coast Hotel and Plessy by Brown is enough to suggest the terrible price that would have been paid if the Court had not overruled as it did. In the present cases, however, as our analysis to this point makes clear, the terrible price would be paid for overruling. Our analysis *865 would not be complete, however, without explaining why overruling Roe `s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand why this would be so it is necessary to understand the source of this Court's authority, the conditions necessary for its preservation, and its relationship to the country's understanding of itself as a constitutional Republic.

The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.

The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is *866 obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.

The need for principled action to be perceived as such is implicated to some degree whenever this, or any other appellate court, overrules a prior case. This is not to say, of course, that this Court cannot give a perfectly satisfactory explanation in most cases. People understand that some of the Constitution's language is hard to fathom and that the Court's Justices are sometimes able to perceive significant facts or to understand principles of law that eluded their predecessors and that justify departures from existing decisions. However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court.

In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country's belief in the Court's good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.

That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its *867 decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. Cf. Brown v. Board of Education, 349 U. S. 294, 300 (1955) (Brown II) ("[I]t should go without saying that the vitality of th[e] constitutional principles [announced in Brown I, ] cannot be allowed to yield simply because of disagreement with them").

The country's loss of confidence in the Judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision's results *868 when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.

It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.

The Court's duty in the present cases is clear. In 1973, it confronted the already-divisive issue of governmental power *869 to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe `s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe `s original decision, and we do so today.

IV

From what we have said so far it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.

That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.

*870 We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis.Any judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 759; Akron I , 462 U. S., at 419-420. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe `s statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at 882-883, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today.

The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. See Roe v. Wade, 410 U. S., at 163. Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, see supra, at 860, but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child.

*871 The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.

On the other side of the equation is the interest of the State in the protection of potential life. The Roe Court recognized the State's "important and legitimate interest in protecting the potentiality of human life." Roe, supra, at 162. The weight to be given this state interest, not the strength of the woman's interest, was the difficult question faced in Roe. We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and coming as it does after nearly 20 years of litigation in Roe `s wake we are satisfied that the immediate question is not the soundness of Roe `s resolution of the issue, but the precedential force that must be accorded to its holding. And we have concluded that the essential holding of Roe should be reaffirmed.

Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but also the State's "important and legitimate interest in potential life." Roe, supra, at 163. That portion of the decision in Roe has been given too little acknowledgment and implementation by the Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. See, e. g., Akron I, supra, at 427. Not all of the cases decided under that formulation can be reconciled with the holding in Roeitself that the State has legitimate interests in the health of the woman and in protecting the potential life within her. In resolving this tension, we choose to rely upon Roe, as against the later cases.

*872 Roe established a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman's health, but not to further the State's interest in potential life, are permitted during the second trimester; and during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake. Roe, supra, at 163-166. Most of our cases since Roe have involved the application of rules derived from the trimester framework. See, e. g., Thornburgh v. American College of Obstetricians and Gynecologists, supra; Akron I, supra.

The trimester framework no doubt was erected to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State's permissible exercise of its powers.

Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. "`[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.' " Webster v. Reproductive Health Services, 492 U. S., at 511 (opinion of *873 the Court) (quoting Poelker v. Doe, 432 U. S. 519, 521 (1977)). It follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. This, too, we find consistent with Roe`s central premises, and indeed the inevitable consequence of our holding that the State has an interest in protecting the life of the unborn.

We reject the trimester framework, which we do not consider to be part of the essential holding of Roe. See Webster v. Reproductive Health Services, 492 U. S., at 518 (opinion of Rehnquist, C. J.); id., at 529 (O'Connor, J., concurring in part and concurring in judgment) (describing the trimester framework as "problematic"). Measures aimed at ensuring that a woman's choice contemplates the consequences for the fetus do not necessarily interfere with the right recognized in Roe, although those measures have been found to be inconsistent with the rigid trimester framework announced in that case. A logical reading of the central holding in Roe itself, and a necessary reconciliation of the liberty of the woman and the interest of the State in promoting prenatal life, require, in our view, that we abandon the trimester framework as a rigid prohibition on all previability regulation aimed at the protection of fetal life. The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe.

As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right. An example clarifies the point. We have held that not every ballot access limitation amounts to an infringement of the right to vote. Rather, the States are granted substantial flexibility in establishing the framework within which voters choose the candidates for whom they *874 wish to vote. Anderson v. Celebrezze, 460 U. S. 780, 788 (1983); Norman v. Reed, 502 U. S. 279 (1992).

The abortion right is similar. Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. See Hodgson v. Minnesota, 497 U. S. 417, 458-459 (1990) (O'Connor, J., concurring in part and concurring in judgment in part); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 519-520 (1990) (Akron II) (opinion of Kennedy, J.); Webster v. Reproductive Health Services, supra, at 530 (O'Connor, J., concurring in part and concurring in judgment); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 828 (O'Connor, J., dissenting); Simopoulos v. Virginia,462 U. S. 506, 520 (1983) (O'Connor, J., concurring in part and concurring in judgment); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 505 (1983) (O'Connor, J., concurring in judgment in part and dissenting in part); Akron I, 462 U. S., at 464 (O'Connor, J., joined by White and Rehnquist, JJ., dissenting); Bellotti v. Baird, 428 U. S. 132, 147 (1976) (Bellotti I) .

For the most part, the Court's early abortion cases adhered to this view. In Maherv. Roe, 432 U. S. 464, 473-474 (1977), the Court explained: "Roe did not declare an unqualified `constitutional right to an abortion,' as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy." See *875 also Doe v. Bolton, 410 U. S. 179, 198 (1973) ("[T]he interposition of the hospital abortion committee is unduly restrictive of the patient's rights"); Bellotti I, supra, at 147 (State may not "impose undue burdens upon a minor capable of giving an informed consent"); Harris v. McRae, 448 U. S. 297, 314 (1980) (citing Maher, supra ). Cf. Carey v. Population Services International, 431 U. S., at 688 ("[T]he same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely").

These considerations of the nature of the abortion right illustrate that it is an overstatement to describe it as a right to decide whether to have an abortion "without interference from the State." Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 61 (1976). All abortion regulations interfere to some degree with a woman's ability to decide whether to terminate her pregnancy. It is, as a consequence, not surprising that despite the protestations contained in the original Roe opinion to the effect that the Court was not recognizing an absolute right, 410 U. S., at 154-155, the Court's experience applying the trimester framework has led to the striking down of some abortion regulations which in no real sense deprived women of the ultimate decision. Those decisions went too far because the right recognized by Roe is a right "to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U. S., at 453. Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in the trimester framework: even in Roe `s terms, in practice it undervalues the State's interest in the potential life within the woman.

Roe v. Wade was express in its recognition of the State's "important and legitimate interest[s] in preserving and protecting *876 the health of the pregnant woman [and] in protecting the potentiality of human life." 410 U. S., at 162. The trimester framework, however, does not fulfill Roe `s own promise that the State has an interest in protecting fetal life or potential life. Roe began the contradiction by using the trimester framework to forbid any regulation of abortion designed to advance that interest before viability. Id., at 163. Before viability, Roe and subsequent cases treat all governmental attempts to influence a woman's decision on behalf of the potential life within her as unwarranted. This treatment is, in our judgment, incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy. Cf. Webster, 492 U. S., at 519 (opinion of Rehnquist, C. J.); Akron I, supra, at 461 (O'Connor, J., dissenting).

The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty.

The concept of an undue burden has been utilized by the Court as well as individual Members of the Court, including two of us, in ways that could be considered inconsistent. See, e. g., Hodgson v. Minnesota, supra, at 459-461(O'Connor, J., concurring in part and concurring in judgment); Akron II, supra, at 519-520 (opinion of Kennedy, J.); Thornburgh v. American College of Obstetricians and Gynecologists, supra, at 828-829 (O'Connor, J., dissenting); Akron I, supra, at 461-466 (O'Connor, J., dissenting); Harris v. McRae, supra, at 314; Maher v. Roe, supra, at 473; Beal v. Doe, 432 U. S. 438, 446 (1977); Bellotti I, supra, at 147. Because we set forth a standard of general application to which we intend to adhere, it is important to clarify what is meant by an undue burden.

*877 A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends. To the extent that the opinions of the Court or of individual Justices use the undue burden standard in a manner that is inconsistent with this analysis, we set out what in our view should be the controlling standard. Cf. McCleskey v. Zant, 499 U. S. 467, 489 (1991) (attempting "to define the doctrine of abuse of the writ with more precision" after acknowledging tension among earlier cases). In our considered judgment, an undue burden is an unconstitutional burden. See Akron II, 497 U. S., at 519-520 (opinion of Kennedy, J.). Understood another way, we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability could be constitutional. See, e. g., Akron I, 462 U. S., at 462-463 (O'Connor, J., dissenting). The answer is no.

Some guiding principles should emerge. What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. See infra, at 899-900 (addressing Pennsylvania's parental consent requirement).

*878 Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.

Even when jurists reason from shared premises, some disagreement is inevitable. Compare Hodgson, 497 U. S., at 482-497 (Kennedy, J., concurring in judgment in part and dissenting in part), with id., at 458-460 (O'Connor, J., concurring in part and concurring in judgment in part). That is to be expected in the application of any legal standard which must accommodate life's complexity. We do not expect it to be otherwise with respect to the undue burden standard. We give this summary:

(a) To protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.

(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.

*879 (d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

(e) We also reaffirm Roe `s holding that "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Roe v. Wade,410 U. S., at 164-165.

These principles control our assessment of the Pennsylvania statute, and we now turn to the issue of the validity of its challenged provisions.

V

The Court of Appeals applied what it believed to be the undue burden standard and upheld each of the provisions except for the husband notification requirement. We agree generally with this conclusion, but refine the undue burden analysis in accordance with the principles articulated above. We now consider the separate statutory sections at issue.

A

Because it is central to the operation of various other requirements, we begin with the statute's definition of medical emergency. Under the statute, a medical emergency is

"[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." 18 Pa. Cons. Stat. § 3203 (1990).

*880 Petitioners argue that the definition is too narrow, contending that it forecloses the possibility of an immediate abortion despite some significant health risks. If the contention were correct, we would be required to invalidate the restrictive operation of the provision, for the essential holding of Roe forbids a State to interfere with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health. 410 U. S., at 164. See also Harris v. McRae, 448 U. S., at 316.

The District Court found that there were three serious conditions which would not be covered by the statute: preeclampsia, inevitable abortion, and premature ruptured membrane. 744 F. Supp., at 1378. Yet, as the Court of Appeals observed, 947 F. 2d, at 700-701, it is undisputed that under some circumstances each of these conditions could lead to an illness with substantial and irreversible consequences. While the definition could be interpreted in an unconstitutional manner, the Court of Appeals construed the phrase "serious risk" to include those circumstances. Id., at 701. It stated: "[W]e read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman." Ibid. As we said in Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 499-500 (1985): "Normally, . . . we defer to the construction of a state statute given it by the lower federal courts." Indeed, we have said that we will defer to lower court interpretations of state law unless they amount to "plain" error. Palmer v. Hoffman, 318 U. S. 109, 118 (1943). This "`reflect[s] our belief that district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States.' " Frisby v. Schultz, 487 U. S. 474, 482 (1988) (citation omitted). We adhere to that course today, and conclude that, as construed by the Court of Appeals, the medical emergency definition imposes no undue burden on a woman's abortion right.

*881 B

We next consider the informed consent requirement. 18 Pa. Cons. Stat. § 3205 (1990). Except in a medical emergency, the statute requires that at least 24 hours before performing an abortion a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the "probable gestational age of the unborn child." The physician or a qualified nonphysician must inform the woman of the availability of printed materials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion. An abortion may not be performed unless the woman certifies in writing that she has been informed of the availability of these printed materials and has been provided them if she chooses to view them.

Our prior decisions establish that as with any medical procedure, the State may require a woman to give her written informed consent to an abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 67. In this respect, the statute is unexceptional. Petitioners challenge the statute's definition of informed consent because it includes the provision of specific information by the doctor and the mandatory 24-hour waiting period. The conclusions reached by a majority of the Justices in the separate opinions filed today and the undue burden standard adopted in this opinion require us to overrule in part some of the Court's past decisions, decisions driven by the trimester framework's prohibition of all previability regulations designed to further the State's interest in fetal life.

In Akron I, 462 U. S. 416 (1983), we invalidated an ordinance which required that a woman seeking an abortion be provided by her physician with specific information "designed to influence the woman's informed choice between abortion or childbirth." Id., at 444. As we later described *882 the Akron I holding in Thornburghv. American College of Obstetricians and Gynecologists, 476 U. S., at 762, there were two purported flaws in the Akron ordinance: the information was designed to dissuade the woman from having an abortion and the ordinance imposed "a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient . . . ." Ibid.

To the extent Akron I and Thornburgh find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the "probable gestational age" of the fetus, those cases go too far, are inconsistent with Roe `s acknowledgment of an important interest in potential life, and are overruled. This is clear even on the very terms of Akron I and Thornburgh. Those decisions, along with Danforth, recognize a substantial government interest justifying a requirement that a woman be apprised of the health risks of abortion and childbirth. E. g., Danforth, supra, at 66-67. It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.

We also see no reason why the State may not require doctors to inform a woman seeking an abortion of the availability of materials relating to the consequences to the fetus, even when those consequences have no direct relation to her health. An example illustrates the point. We would think *883 it constitutional for the State to require that in order for there to be informed consent to a kidney transplant operation the recipient must be supplied with information about risks to the donor as well as risks to himself or herself. A requirement that the physician make available information similar to that mandated by the statute here was described in Thornburgh as "an outright attempt to wedge the Commonwealth's message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician." 476 U. S., at 762. We conclude, however, that informed choice need not be defined in such narrow terms that all considerations of the effect on the fetus are made irrelevant. As we have made clear, we depart from the holdings of Akron I and Thornburgh to the extent that we permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion. In short, requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the woman to choose childbirth over abortion. This requirement cannot be considered a substantial obstacle to obtaining an abortion, and, it follows, there is no undue burden.

Our prior cases also suggest that the "straitjacket," Thornburgh, supra, at 762(quoting Danforth, supra, at 67, n. 8), of particular information which must be given in each case interferes with a constitutional right of privacy between a pregnant woman and her physician. As a preliminary matter, it is worth noting that the statute now before us does not require a physician to comply with the informed consent provisions "if he or she can demonstrate by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely *884 adverse effect on the physical or mental health of the patient." 18 Pa. Cons. Stat. § 3205 (1990). In this respect, the statute does not prevent the physician from exercising his or her medical judgment.

Whatever constitutional status the doctor-patient relation may have as a general matter, in the present context it is derivative of the woman's position. The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right to physical autonomy. On its own, the doctor-patient relation here is entitled to the same solicitude it receives in other contexts. Thus, a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure.

All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U. S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State, cf. Whalen v. Roe, 429 U. S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.

The Pennsylvania statute also requires us to reconsider the holding in Akron I that the State may not require that a physician, as opposed to a qualified assistant, provide information relevant to a woman's informed consent. 462 U. S., at 448. Since there is no evidence on this record that requiring a doctor to give the information as provided by the statute would amount in practical terms to a substantial obstacle to a woman seeking an abortion, we conclude that it is not *885 an undue burden. Our cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others. See Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). Thus, we uphold the provision as a reasonable means to ensure that the woman's consent is informed.

Our analysis of Pennsylvania's 24-hour waiting period between the provision of the information deemed necessary to informed consent and the performance of an abortion under the undue burden standard requires us to reconsider the premise behind the decision in Akron I invalidating a parallel requirement. In Akron I we said: "Nor are we convinced that the State's legitimate concern that the woman's decision be informed is reasonably served by requiring a 24-hour delay as a matter of course." 462 U. S., at 450. We consider that conclusion to be wrong. The idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that important information become part of the background of the decision. The statute, as construed by the Court of Appeals, permits avoidance of the waiting period in the event of a medical emergency and the record evidence shows that in the vast majority of cases, a 24-hour delay does not create any appreciable health risk. In theory, at least, the waiting period is a reasonable measure to implement the State's interest in protecting the life of the unborn, a measure that does not amount to an undue burden.

Whether the mandatory 24-hour waiting period is nonetheless invalid because in practice it is a substantial obstacle to a woman's choice to terminate her pregnancy is a closer question. The findings of fact by the District Court indicate that because of the distances many women must travel to reach an abortion provider, the practical effect will often be *886 a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor. The District Court also found that in many instances this will increase the exposure of women seeking abortions to "the harassment and hostility of antiabortion protestors demonstrating outside a clinic." 744 F. Supp., at 1351. As a result, the District Court found that for those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be "particularly burdensome." Id., at 1352.

These findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden. We do not doubt that, as the District Court held, the waiting period has the effect of "increasing the cost and risk of delay of abortions," id., at 1378, but the District Court did not conclude that the increased costs and potential delays amount to substantial obstacles. Rather, applying the trimester framework's strict prohibition of all regulation designed to promote the State's interest in potential life before viability, see id., at 1374, the District Court concluded that the waiting period does not further the state "interest in maternal health" and "infringes the physician's discretion to exercise sound medical judgment," id., at 1378. Yet, as we have stated, under the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. And while the waiting period does limit a physician's discretion, that is not, standing alone, a reason to invalidate it. In light of the construction given the statute's definition of medical emergency by the Court of Appeals, and the District Court's findings, we cannot say that the waiting period imposes a real health risk.

We also disagree with the District Court's conclusion that the "particularly burdensome" effects of the waiting period *887 on some women require its invalidation. A particular burden is not of necessity a substantial obstacle. Whether a burden falls on a particular group is a distinct inquiry from whether it is a substantial obstacle even as to the women in that group. And the District Court did not conclude that the waiting period is such an obstacle even for the women who are most burdened by it. Hence, on the record before us, and in the context of this facial challenge, we are not convinced that the 24-hour waiting period constitutes an undue burden.

We are left with the argument that the various aspects of the informed consent requirement are unconstitutional because they place barriers in the way of abortion on demand. Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. See, e. g., Doe v. Bolton, 410 U. S., at 189. Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right, it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right.

C

Section 3209 of Pennsylvania's abortion law provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her. A physician who performs an abortion on *888 a married woman without receiving the appropriate signed statement will have his or her license revoked, and is liable to the husband for damages.

The District Court heard the testimony of numerous expert witnesses, and made detailed findings of fact regarding the effect of this statute. These included:

"273. The vast majority of women consult their husbands prior to deciding to terminate their pregnancy. . . .

. . . . .

"279. The `bodily injury' exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or her children. . . .

. . . . .

"281. Studies reveal that family violence occurs in two million families in the United States. This figure, however, is a conservative one that substantially understates (because battering is usually not reported until it reaches life-threatening proportions) the actual number of families affected by domestic violence. In fact, researchers estimate that one of every two women will be battered at some time in their life. . . .

"282. A wife may not elect to notify her husband of her intention to have an abortion for a variety of reasons, including the husband's illness, concern about her own health, the imminent failure of the marriage, or the husband's absolute opposition to the abortion. . . .

"283. The required filing of the spousal consent form would require plaintiff-clinics to change their counseling *889 procedures and force women to reveal their most intimate decision-making on pain of criminal sanctions. The confidentiality of these revelations could not be guaranteed, since the woman's records are not immune from subpoena. . . .

"284. Women of all class levels, educational backgrounds, and racial, ethnic and religious groups are battered. . . .

"285. Wife-battering or abuse can take on many physical and psychological forms. The nature and scope of the battering can cover a broad range of actions and be gruesome and torturous. . . .

"286. Married women, victims of battering, have been killed in Pennsylvania and throughout the United States. . . .

"287. Battering can often involve a substantial amount of sexual abuse, including marital rape and sexual mutilation. . . .

"288. In a domestic abuse situation, it is common for the battering husband to also abuse the children in an attempt to coerce the wife. . . .

"289. Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy. . . . The battering husband may deny parentage and use the pregnancy as an excuse for abuse. . . .

"290. Secrecy typically shrouds abusive families. Family members are instructed not to tell anyone, especially police or doctors, about the abuse and violence. Battering husbands often threaten their wives or her children with further abuse if she tells an outsider of the violence and tells her that nobody will believe her. A battered woman, therefore, is highly unlikely to disclose *890 the violence against her for fear of retaliation by the abuser. . . .

"291. Even when confronted directly by medical personnel or other helping professionals, battered women often will not admit to the battering because they have not admitted to themselves that they are battered. . . .

. . . . .

"294. A woman in a shelter or a safe house unknown to her husband is not `reasonably likely' to have bodily harm inflicted upon her by her batterer, however her attempt to notify her husband pursuant to section 3209 could accidentally disclose her whereabouts to her husband. Her fear of future ramifications would be realistic under the circumstances.

"295. Marital rape is rarely discussed with others or reported to law enforcement authorities, and of those reported only few are prosecuted. . . .

"296. It is common for battered women to have sexual intercourse with their husbands to avoid being battered. While this type of coercive sexual activity would be spousal sexual assault as defined by the Act, many women may not consider it to be so and others would fear disbelief. . . .

"297. The marital rape exception to section 3209 cannot be claimed by women who are victims of coercive sexual behavior other than penetration. The 90-day reporting requirement of the spousal sexual assault statute, 18 Pa. Con. Stat. Ann. § 3218(c), further narrows the class of sexually abused wives who can claim the exception, since many of these women may be psychologically unable to discuss or report the rape for several years after the incident. . . .

"298. Because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions to section 3209 of the Act, regardless of *891 whether the section applies to them." 744 F. Supp., at 1360-1362 (footnote omitted).

These findings are supported by studies of domestic violence. The American Medical Association (AMA) has published a summary of the recent research in this field, which indicates that in an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every eight husbands had assaulted their wives during the past year. The AMA views these figures as "marked underestimates," because the nature of these incidents discourages women from reporting them, and because surveys typically exclude the very poor, those who do not speak English well, and women who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA, "[r]esearchers on family violence agree that the true incidence of partner violence is probably double the above estimates; or four million severely assaulted women per year. Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-partner during their lifetime." AMA Council on Scientific Affairs, Violence Against Women 7 (1991) (emphasis in original). Thus on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual assault. Id., at 3-4; Shields & Hanneke,

Battered Wives' Reactions to Marital Rape, in The Dark Side of Families: Current Family Violence Research 131, 144 (D. Finkelhor, R. Gelles, G. Hataling, & M. Straus eds. 1983). In families where wifebeating takes place, moreover, child abuse is often present as well. Violence Against Women, supra, at 12.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse, particularly forced social and economic isolation of women, is also common. L. Walker, The Battered *892Woman Syndrome 27-28 (1984). Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative. Herbert, Silver, & Ellard, Coping with an Abusive Relationship: I. How and Why do Women Stay?, 53 J. Marriage & the Family 311 (1991). Many abused women who find temporary refuge in shelters return to their husbands, in large part because they have no other source of income. Aguirre, Why Do They Return? Abused Wives in Shelters, 30 J. Nat. Assn. of Social Workers 350, 352 (1985). Returning to one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide victims in the United States are killed by their spouses. Mercy & Saltzman, Fatal Violence Among Spouses in the United States, 1976-85, 79 Am. J. Public Health 595 (1989). Thirty percent of female homicide victims are killed by their male partners. Domestic Violence: Terrorism in the Home, Hearing before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 101st Cong., 2d Sess., 3 (1990).

The limited research that has been conducted with respect to notifying one's husband about an abortion, although involving samples too small to be representative, also supports the District Court's findings of fact. The vast majority of women notify their male partners of their decision to obtain an abortion. In many cases in which married women do not notify their husbands, the pregnancy is the result of an extramarital affair. Where the husband is the father, the primary reason women do not notify their husbands is that the husband and wife are experiencing marital difficulties, often accompanied by incidents of violence. Ryan & Plutzer, When Married Women Have Abortions: Spousal Notification and Marital Interaction, 51 J. Marriage & the Family 41, 44 (1989).

This information and the District Court's findings reinforce what common sense would suggest. In well-functioning *893 marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from § 3209's notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends. These methods of psychological abuse may act as even more of a deterrent to notification than the possibility of physical violence, but women who are the victims of the abuse are not exempt from § 3209's notification requirement. And many women who are pregnant as a result of sexual assaults by their husbands will be unable to avail themselves of the exception for spousal sexual assault, § 3209(b)(3), because the exception requires that the woman have notified law enforcement authorities within 90 days of the assault, and her husband will be notified of her report once an investigation begins, § 3128(c). If anything in this field is certain, it is that victims of spousal sexual assault are extremely reluctant to report the abuse to the government; hence, a great many spousal rape victims will not be exempt from the notification requirement imposed by § 3209.

The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose *894 a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.

Respondents attempt to avoid the conclusion that § 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that of these women about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of § 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, the statute cannot be invalid on its face. See Brief for Respondents 83-86. We disagree with respondents' basic method of analysis.

The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate's reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.

Respondents' argument itself gives implicit recognition to this principle, at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controlling class women *895 who wish to obtain abortions, rather than all women or all pregnant women, respondents in effect concede that § 3209 must be judged by reference to those for whom it is an actual rather than an irrelevant restriction. Of course, as we have said, § 3209's real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion. It is an undue burden, and therefore invalid.

This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. See, e. g., Akron II, 497 U. S., at 510-519; Bellotti v. Baird, 443 U. S. 622 (1979) (Bellotti II); Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 74. Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.

We recognize that a husband has a "deep and proper concern and interest . . . in his wife's pregnancy and in the growth and development of the fetus she is carrying." Danforth, supra, at 69. With regard to the children he has fathered and raised, the Court has recognized his "cognizable and substantial" interest in their custody. Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); see also Quilloin v. Walcott, 434 U. S. 246 (1978); Caban v. Mohammed, 441 U. S. 380 (1979); Lehr v. Robertson, 463 U. S. 248 (1983). If these cases concerned a State's ability to require the mother to notify the father before taking some action with respect to a living *896 child raised by both, therefore, it would be reasonable to conclude as a general matter that the father's interest in the welfare of the child and the mother's interest are equal.

Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman. Cf. Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 281. The Court has held that "when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor." Danforth, supra, at 71. This conclusion rests upon the basic nature of marriage and the nature of our Constitution: "[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U. S., at 453 (emphasis in original). The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.

There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. In Bradwell v. State, 16 Wall. 130 (1873), three Members of this *897 Court reaffirmed the common-law principle that "a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States." Id., at 141 (Bradley, J., joined by Swayne and Field, JJ., concurring in judgment). Only one generation has passed since this Court observed that "woman is still regarded as the center of home and family life," with attendant "special responsibilities" that precluded full and independent legal status under the Constitution. Hoyt v. Florida,368 U. S. 57, 62 (1961). These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.

In keeping with our rejection of the common-law understanding of a woman's role within the family, the Court held in Danforth that the Constitution does not permit a State to require a married woman to obtain her husband's consent before undergoing an abortion. 428 U. S., at 69. The principles that guided the Court in Danforth should be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife's decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law—those who most reasonably fear the consequences of notifying their husbands that they are pregnant—are in the gravest danger.

*898 The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband's interest in the potential life of the child outweighs a wife's liberty, the State could require a married woman to notify her husband before she uses a postfertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all,if the husband's interest in the fetus' safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband's interest in his wife's reproductive organs. And if a husband's interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify—a requirement of the husband's consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.

Section 3209 embodies a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family. These considerations confirm our conclusion that § 3209 is invalid.

*899 D

We next consider the parental consent provision. Except in a medical emergency, an unemancipated young woman under 18 may not obtain an abortion unless she and one of her parents (or guardian) provides informed consent as defined above. If neither a parent nor a guardian provides consent, a court may authorize the performance of an abortion upon a determination that the young woman is mature and capable of giving informed consent and has in fact given her informed consent, or that an abortion would be in her best interests.

We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. See, e. g., Akron II, 497 U. S., at 510-519; Hodgson, 497 U. S., at 461 (O'Connor, J., concurring in part and concurring in judgment in part); id., at 497-501 (Kennedy, J., concurring in judgment in part and dissenting in part); Akron I,462 U. S., at 440; Bellotti II, 443 U. S., at 643-644 (plurality opinion). Under these precedents, in our view, the one-parent consent requirement and judicial bypass procedure are constitutional.

The only argument made by petitioners respecting this provision and to which our prior decisions do not speak is the contention that the parental consent requirement is invalid because it requires informed parental consent. For the most part, petitioners' argument is a reprise of their argument with respect to the informed consent requirement in general, and we reject it for the reasons given above. Indeed, some of the provisions regarding informed consent have particular force with respect to minors: the waiting period, for example, may provide the parent or parents of a pregnant young woman the opportunity to consult with her in private, and to discuss the consequences of her decision in *900 the context of the values and moral or religious principles of their family. See Hodgson, supra, at 448-449 (opinion of Stevens, J.).

E

Under the recordkeeping and reporting requirements of the statute, every facility which performs abortions is required to file a report stating its name and address as well as the name and address of any related entity, such as a controlling or subsidiary organization. In the case of state-funded institutions, the information becomes public.

For each abortion performed, a report must be filed identifying: the physician (and the second physician where required); the facility; the referring physician or agency; the woman's age; the number of prior pregnancies and prior abortions she has had; gestational age; the type of abortion procedure; the date of the abortion; whether there were any pre-existing medical conditions which would complicate pregnancy; medical complications with the abortion; where applicable, the basis for the determination that the abortion was medically necessary; the weight of the aborted fetus; and whether the woman was married, and if so, whether notice was provided or the basis for the failure to give notice. Every abortion facility must also file quarterly reports showing the number of abortions performed broken down by trimester. See 18 Pa. Cons. Stat. §§ 3207, 3214 (1990). In all events, the identity of each woman who has had an abortion remains confidential.

In Danforth, 428 U. S., at 80, we held that recordkeeping and reporting provisions "that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible." We think that under this standard, all the provisions at issue here, except that relating to spousal notice, are constitutional. Although they do not relate to the State's interest in informing the woman's choice, they do relate to health. The collection of information with respect to actual patients *901 is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult. Nor do we find that the requirements impose a substantial obstacle to a woman's choice. At most they might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us.

Subsection (12) of the reporting provision requires the reporting of, among other things, a married woman's "reason for failure to provide notice" to her husband. § 3214(a)(12). This provision in effect requires women, as a condition of obtaining an abortion, to provide the Commonwealth with the precise information we have already recognized that many women have pressing reasons not to reveal. Like the spousal notice requirement itself, this provision places an undue burden on a woman's choice, and must be invalidated for that reason.

VI

Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution's own promise, the promise of liberty.

* * *

The judgment in No. 91-902 is affirmed. The judgment in No. 91-744 is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion, including consideration of the question of severability.

It is so ordered.

*902 APPENDIX TO OPINION OF O'CONNOR, KENNEDY, AND SOUTER, JJ.

Selected Provisions of the 1988 and 1989 Amendments to the

Pennsylvania Abortion Control Act of 1982 18 PA. CONS. STAT. (1990).

"§ 3203. Definitions.

. . . . .

"`Medical emergency.' That condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function."

"§ 3205. Informed consent.

"(a) General rule.—No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:

"(1) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of:

"(i) The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.

"(ii) The probable gestational age of the unborn child at the time the abortion is to be performed.

"(iii) The medical risks associated with carrying her child to term.

"(2) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician or social worker to whom the responsibility *903 has been delegated by either physician, has informed the pregnant woman that:

"(i) The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it.

"(ii) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department.

"(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.

"(3) A copy of the printed materials has been provided to the woman if she chooses to view these materials.

"(4) The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under paragraphs (1), (2) and (3) has been provided.

"(b) Emergency.—Where a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function.

"(c) Penalty.—Any physician who violates the provisions of this section is guilty of `unprofessional conduct' and his license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P. L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the *904 act of December 20, 1985 (P. L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. Any physician who performs or induces an abortion without first obtaining the certification required by subsection (a)(4) or with knowledge or reason to know that the informed consent of the woman has not been obtained shall for the first offense be guilty of a summary offense and for each subsequent offense be guilty of a misdemeanor of the third degree. No physician shall be guilty of violating this section for failure to furnish the information required by subsection (a) if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient.

"(d) Limitation on civil liability.—Any physician who complies with the provisions of this section may not be held civilly liable to his patient for failure to obtain informed consent to the abortion within the meaning of that term as defined by the act of October 15, 1975 (P. L. 390, No. 111), known as the Health Care Services Malpractice Act."

"§ 3206. Parental consent.

"(a) General rule.—Except in the case of a medical emergency or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated, or if she has been adjudged an incompetent under 20 Pa. C. S. § 5511 (relating to petition and hearing; examination by court-appointed physician), a physician shall not perform an abortion upon her unless, in the case of a woman who is less than 18 years of age, he first obtains the informed consent both of the pregnant woman and of one of her parents; or, in the case of a woman who is incompetent, he first obtains the informed consent of her guardian. In deciding whether to grant such consent, a pregnant woman's parent or guardian shall consider only their child's or ward's best interests. In the case of a pregnancy that is the result of incest, where *905 the father is a party to the incestuous act, the pregnant woman need only obtain the consent of her mother.

"(b) Unavailability of parent or guardian.—If both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the pregnant woman's guardian or guardians shall be sufficient. If the pregnant woman's parents are divorced, consent of the parent having custody shall be sufficient. If neither any parent nor a legal guardian is available to the physician within a reasonable time and in a reasonable manner, consent of any adult person standing in loco parentis shall be sufficient.

"(c) Petition to the court for consent.—If both of the parents or guardians of the pregnant woman refuse to consent to the performance of an abortion or if she elects not to seek the consent of either of her parents or of her guardian, the court of common pleas of the judicial district in which the applicant resides or in which the abortion is sought shall, upon petition or motion, after an appropriate hearing, authorize a physician to perform the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent.

"(d) Court order.—If the court determines that the pregnant woman is not mature and capable of giving informed consent or if the pregnant woman does not claim to be mature and capable of giving informed consent, the court shall determine whether the performance of an abortion upon her would be in her best interests. If the court determines that the performance of an abortion would be in the best interests of the woman, it shall authorize a physician to perform the abortion.

"(e) Representation in proceedings.—The pregnant woman may participate in proceedings in the court on her own behalf and the court may appoint a guardian ad litem to assist her. The court shall, however, advise her that she has *906 a right to court appointed counsel, and shall provide her with such counsel unless she wishes to appear with private counsel or has knowingly and intelligently waived representation by counsel."

"§ 3207. Abortion facilities.

. . . . .

"(b) Reports.—Within 30 days after the effective date of this chapter, every facility at which abortions are performed shall file, and update immediately upon any change, a report with the department, containing the following information:

"(1) Name and address of the facility.

"(2) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations.

"(3) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations having contemporaneous commonality of ownership, beneficial interest, directorship or officership with any other facility.

The information contained in those reports which are filed pursuant to this subsection by facilities which receive State-appropriated funds during the 12-calendar-month period immediately preceding a request to inspect or copy such reports shall be deemed public information. Reports filed by facilities which do not receive State-appropriated funds shall only be available to law enforcement officials, the State Board of Medicine and the State Board of Osteopathic Medicine for use in the performance of their official duties. Any facility failing to comply with the provisions of this subsection shall be assessed by the department a fine of $500 for each day it is in violation hereof."

"§ 3208. Printed information.

"(a) General rule.—The department shall cause to be published in English, Spanish and Vietnamese, within 60 days after this chapter becomes law, and shall update on an annual basis, the following easily comprehensible printed materials:

*907 "(1) Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers, in which they might be contacted, or, at the option of the department, printed materials including a toll-free 24-hour a day telephone number which may be called to obtain, orally, such a list and description of agencies in the locality of the caller and of the services they offer. The materials shall provide information on the availability of medical assistance benefits for prenatal care, childbirth and neonatal care, and state that it is unlawful for any individual to coerce a woman to undergo abortion, that any physician who performs an abortion upon a woman without obtaining her informed consent or without according her a private medical consultation may be liable to her for damages in a civil action at law, that the father of a child is liable to assist in the support of that child, even in instances where the father has offered to pay for an abortion and that the law permits adoptive parents to pay costs of prenatal care, childbirth and neonatal care.

"(2) Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including pictures representing the development of unborn children at two-week gestational increments, and any relevant information on the possibility of the unborn child's survival; provided that any such pictures or drawings must contain the dimensions of the fetus and must be realistic and appropriate for the woman's stage of pregnancy. The materials shall be objective, non-judgmental and designed *908 to convey only accurate scientific information about the unborn child at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, the possible detrimental psychological effects of abortion and the medical risks commonly associated with each such procedure and the medical risks commonly associated with carrying a child to term.

"(b) Format.—The materials shall be printed in a typeface large enough to be clearly legible.

"(c) Free distribution.—The materials required under this section shall be available at no cost from the department upon request and in appropriate number to any person, facility or hospital."

"§ 3209. Spousal notice.

"(a) Spousal notice required.—In order to further the Commonwealth's interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law.

"(b) Exceptions.—The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:

"(1) Her spouse is not the father of the child.

"(2) Her spouse, after diligent effort, could not be located.

*909 "(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.

"(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.

Such statement need not be notarized, but shall bear a notice that any false statements made therein are punishable by law.

"(c) Medical emergency.—The requirements of subsection (a) shall not apply in case of a medical emergency.

"(d) Forms.—The department shall cause to be published, forms which may be utilized for purposes of providing the signed statements required by subsections (a) and (b). The department shall distribute an adequate supply of such forms to all abortion facilities in this Commonwealth.

"(e) Penalty; civil action.—Any physician who violates the provisions of this section is guilty of `unprofessional conduct,' and his or her license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P. L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P. L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. In addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive damages in the amount of $5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs."

"§ 3214. Reporting.

"(a) General rule.—For the purpose of promotion of maternal health and life by adding to the sum of medical and *910 public health knowledge through the compilation of relevant data, and to promote the Commonwealth's interest in protection of the unborn child, a report of each abortion performed shall be made to the department on forms prescribed by it. The report forms shall not identify the individual patient by name and shall include the following information:

"(1) Identification of the physician who performed the abortion, the concurring physician as required by section 3211(c)(2) (relating to abortion on unborn child of 24 or more weeks gestational age), the second physician as required by section 3211(c)(5) and the facility where the abortion was performed and of the referring physician, agency or service, if any.

"(2) The county and state in which the woman resides.

"(3) The woman's age.

"(4) The number of prior pregnancies and prior abortions of the woman.

"(5) The gestational age of the unborn child at the time of the abortion.

"(6) The type of procedure performed or prescribed and the date of the abortion.

"(7) Pre-existing medical conditions of the woman which would complicate pregnancy, if any, and if known, any medical complication which resulted from the abortion itself.

"(8) The basis for the medical judgment of the physician who performed the abortion that the abortion was necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman, where an abortion has been performed pursuant to section 3211(b)(1).

"(9) The weight of the aborted child for any abortion performed pursuant to section 3211(b)(1).

"(10) Basis for any medical judgment that a medical emergency existed which excused the physician from compliance with any provision of this chapter.

*911 "(11) The information required to be reported under section 3210(a) (relating to determination of gestational age).

"(12) Whether the abortion was performed upon a married woman and, if so, whether notice to her spouse was given. If no notice to her spouse was given, the report shall also indicate the reason for failure to provide notice.

. . . . .

"(f) Report by facility.—Every facility in which an abortion is performed within this Commonwealth during any quarter year shall file with the department a report showing the total number of abortions performed within the hospital or other facility during that quarter year. This report shall also show the total abortions performed in each trimester of pregnancy. Any report shall be available for public inspection and copying only if the facility receives State-appropriated funds within the 12-calendar-month period immediately preceding the filing of the report. These reports shall be submitted on a form prescribed by the department which will enable a facility to indicate whether or not it is receiving State-appropriated funds. If the facility indicates on the form that it is not receiving State-appropriated funds, the department shall regard its report as confidential unless it receives other evidence which causes it to conclude that the facility receives State-appropriated funds."

Justice Stevens, concurring in part and dissenting in part.

The portions of the Court's opinion that I have joined are more important than those with which I disagree. I shall therefore first comment on significant areas of agreement, and then explain the limited character of my disagreement.

*912 I

The Court is unquestionably correct in concluding that the doctrine of stare decisishas controlling significance in a case of this kind, notwithstanding an individual Justice's concerns about the merits.1 The central holding of Roe v. Wade, 410 U. S. 113 (1973), has been a "part of our law" for almost two decades. Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 101 (1976) (Stevens, J., concurring in part and dissenting in part). It was a natural sequel to the protection of individual liberty established in Griswold v. Connecticut, 381 U. S. 479 (1965). See also Carey v. Population Services International, 431 U. S. 678, 687, 702 (1977) (White, J., concurring in part and concurring in result). The societal costs of overruling Roe at this late date would be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women.

Stare decisis also provides a sufficient basis for my agreement with the joint opinion's reaffirmation of Roe `s postviability analysis. Specifically, I accept the proposition that "[i]f the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." 410 U. S., at 163-164; see ante, at 879.

I also accept what is implicit in the Court's analysis, namely, a reaffirmation of Roe`s explanation of why the State's obligation to protect the life or health of the mother *913 must take precedence over any duty to the unborn. The Court in Roe carefully considered, and rejected, the State's argument "that the fetus is a `person' within the language and meaning of the Fourteenth Amendment." 410 U. S., at 156. After analyzing the usage of "person" in the Constitution, the Court concluded that that word "has application only postnatally." Id., at 157. Commenting on the contingent property interests of the unborn that are generally represented by guardians ad litem, the Court noted: "Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense." Id., at 162. Accordingly, an abortion is not "the termination of life entitled to Fourteenth Amendment protection." Id., at 159. From this holding, there was no dissent, see id., at 173; indeed, no Member of the Court has ever questioned this fundamental proposition. Thus, as a matter of federal constitutional law, a developing organism that is not yet a "person" does not have what is sometimes described as a "right to life."2 This has been and, by the Court's holding today, *914 remains a fundamental premise of our constitutional law governing reproductive autonomy.

II

My disagreement with the joint opinion begins with its understanding of the trimester framework established in Roe. Contrary to the suggestion of the joint opinion, ante, at 876, it is not a "contradiction" to recognize that the State may have a legitimate interest in potential human life and, at the same time, to conclude that that interest does not justify the regulation of abortion before viability (although other interests, such as maternal health, may). The fact that the State's interest is legitimate does not tell us when, if ever, that interest outweighs the pregnant woman's interest in personal liberty. It is appropriate, therefore, to consider more carefully the nature of the interests at stake.

First, it is clear that, in order to be legitimate, the State's interest must be secular; consistent with the First Amendment the State may not promote a theological or sectarian interest. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 778 (1986) (Stevens, J., concurring); see generally Webster v. Reproductive Health Services, 492 U. S. 490, 563-572 (1989) (Stevens, J., concurring in part and dissenting in part). Moreover, as discussed above, the state interest in potential human life is not an interest in loco parentis, for the fetus is not a person.

Identifying the State's interests—which the States rarely articulate with any precision—makes clear that the interest in protecting potential life is not grounded in the Constitution. It is, instead, an indirect interest supported by both humanitarian and pragmatic concerns. Many of our citizens believe that any abortion reflects an unacceptable disrespect for potential human life and that the performance of more *915 than a million abortions each year is intolerable; many find third-trimester abortions performed when the fetus is approaching personhood particularly offensive. The State has a legitimate interest in minimizing such offense. The State may also have a broader interest in expanding the population,3 believing society would benefit from the services of additional productive citizens—or that the potential human lives might include the occasional Mozart or Curie. These are the kinds of concerns that comprise the State's interest in potential human life.

In counterpoise is the woman's constitutional interest in liberty. One aspect of this liberty is a right to bodily integrity, a right to control one's person. See, e. g., Rochin v. California, 342 U. S. 165 (1952); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942). This right is neutral on the question of abortion: The Constitution would be equally offended by an absolute requirement that all women undergo abortions as by an absolute prohibition on abortions. "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." Stanley v. Georgia, 394 U. S. 557, 565 (1969). The same holds true for the power to control women's bodies.

The woman's constitutional liberty interest also involves her freedom to decide matters of the highest privacy and the most personal nature. Cf. Whalen v. Roe,429 U. S. 589, *916 598-600 (1977). A woman considering abortion faces "a difficult choice having serious and personal consequences of major importance to her own future—perhaps to the salvation of her own immortal soul." Thornburgh,476 U. S., at 781. The authority to make such traumatic and yet empowering decisions is an element of basic human dignity. As the joint opinion so eloquently demonstrates, a woman's decision to terminate her pregnancy is nothing less than a matter of conscience.

Weighing the State's interest in potential life and the woman's liberty interest, I agree with the joint opinion that the State may "` "expres[s] a preference for normal childbirth,"` " that the State may take steps to ensure that a woman's choice "is thoughtful and informed," and that "States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning." Ante, at 872-873. Serious questions arise, however, when a State attempts to "persuade the woman to choose childbirth over abortion." Ante,at 878. Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family; but it must respect the individual's freedom to make such judgments.

This theme runs throughout our decisions concerning reproductive freedom. In general, Roe `s requirement that restrictions on abortions before viability be justified by the State's interest in maternal health has prevented States from interjecting regulations designed to influence a woman's decision. Thus, we have upheld regulations of abortion that are not efforts to sway or direct a woman's choice, but rather are efforts to enhance the deliberative quality of that decision or are neutral regulations on the health aspects of her decision. We have, for example, upheld regulations requiring *917 written informed consent, see Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); limited recordkeeping and reporting, see ibid.; and pathology reports, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983); as well as various licensing and qualification provisions, see, e. g., Roe, 410 U. S., at 150; Simopoulos v. Virginia, 462 U. S. 506 (1983). Conversely, we have consistently rejected state efforts to prejudice a woman's choice, either by limiting the information available to her, see Bigelow v. Virginia, 421 U. S. 809 (1975), or by "requir[ing] the delivery of information designed `to influence the woman's informed choice between abortion or childbirth.' " Thornburgh, 476 U. S., at 760; see also Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 442-449 (1983).

In my opinion, the principles established in this long line of cases and the wisdom reflected in Justice Powell's opinion for the Court in Akron (and followed by the Court just six years ago in Thornburgh) should govern our decision today. Under these principles, Pa. Cons. Stat. §§ 3205(a)(2)(i)—(iii) (1990) of the Pennsylvania statute are unconstitutional. Those sections require a physician or counselor to provide the woman with a range of materials clearly designed to persuade her to choose not to undergo the abortion. While the Commonwealth is free, pursuant to § 3208 of the Pennsylvania law, to produce and disseminate such material, the Commonwealth may not inject such information into the woman's deliberations just as she is weighing such an important choice.

Under this same analysis, §§ 3205(a)(1)(i) and (iii) of the Pennsylvania statute are constitutional. Those sections, which require the physician to inform a woman of the nature and risks of the abortion procedure and the medical risks of carrying to term, are neutral requirements comparable to those imposed in other medical procedures. Those sections indicate no effort by the Commonwealth to influence the *918 woman's choice in any way. If anything, such requirements enhance,rather than skew, the woman's decisionmaking.

III

The 24-hour waiting period required by §§ 3205(a)(1)—(2) of the Pennsylvania statute raises even more serious concerns. Such a requirement arguably furthers the Commonwealth's interests in two ways, neither of which is constitutionally permissible.

First, it may be argued that the 24-hour delay is justified by the mere fact that it is likely to reduce the number of abortions, thus furthering the Commonwealth's interest in potential life. But such an argument would justify any form of coercion that placed an obstacle in the woman's path. The Commonwealth cannot further its interests by simply wearing down the ability of the pregnant woman to exercise her constitutional right.

Second, it can more reasonably be argued that the 24-hour delay furthers the Commonwealth's interest in ensuring that the woman's decision is informed and thoughtful. But there is no evidence that the mandated delay benefits women or that it is necessary to enable the physician to convey any relevant information to the patient. The mandatory delay thus appears to rest on outmoded and unacceptable assumptions about the decisionmaking capacity of women. While there are well-established and consistently maintained reasons for the Commonwealth to view with skepticism the ability of minors to make decisions, see Hodgson v. Minnesota, 497 U. S. 417, 449 (1990),4 none of those reasons applies to an *919 adult woman's decisionmaking ability. Just as we have left behind the belief that a woman must consult her husband before undertaking serious matters, see ante, at 895-898, so we must reject the notion that a woman is less capable of deciding matters of gravity. Cf. Reed v. Reed, 404 U. S. 71 (1971).

In the alternative, the delay requirement may be premised on the belief that the decision to terminate a pregnancy is presumptively wrong. This premise is illegitimate. Those who disagree vehemently about the legality and morality of abortion agree about one thing: The decision to terminate a pregnancy is profound and difficult. No person undertakes such a decision lightly—and States may not presume that a woman has failed to reflect adequately merely because her conclusion differs from the State's preference. A woman who has, in the privacy of her thoughts and conscience, weighed the options and made her decision cannot be forced to reconsider all, simply because the State believes she has come to the wrong conclusion.5

*920 Part of the constitutional liberty to choose is the equal dignity to which each of us is entitled. A woman who decides to terminate her pregnancy is entitled to the same respect as a woman who decides to carry the fetus to term. The mandatory waiting period denies women that equal respect.

IV

In my opinion, a correct application of the "undue burden" standard leads to the same conclusion concerning the constitutionality of these requirements. A state-imposed burden on the exercise of a constitutional right is measured both by its effects and by its character: A burden may be "undue" either because the burden is too severe or because it lacks a legitimate, rational justification.6

The 24-hour delay requirement fails both parts of this test. The findings of the District Court establish the severity of *921 the burden that the 24-hour delay imposes on many pregnant women. Yet even in those cases in which the delay is not especially onerous, it is,in my opinion, "undue" because there is no evidence that such a delay serves a useful and legitimate purpose. As indicated above, there is no legitimate reason to require a woman who has agonized over her decision to leave the clinic or hospital and return again another day. While a general requirement that a physician notify her patients about the risks of a proposed medical procedure is appropriate, a rigid requirement that all patients wait 24 hours or (what is true in practice) much longer to evaluate the significance of information that is either common knowledge or irrelevant is an irrational and, therefore, "undue" burden.

The counseling provisions are similarly infirm. Whenever government commands private citizens to speak or to listen, careful review of the justification for that command is particularly appropriate. In these cases, the Pennsylvania statute directs that counselors provide women seeking abortions with information concerning alternatives to abortion, the availability of medical assistance benefits, and the possibility of child-support payments. §§ 3205(a)(2)(i)—(iii). The statute requires that this information be given to all women seeking abortions, including those for whom such information is clearly useless, such as those who are married, those who have undergone the procedure in the past and are fully aware of the options, and those who are fully convinced that abortion is their only reasonable option. Moreover, the statute requires physicians to inform all of their patients of "[t]he probable gestational age of the unborn child." § 3205(a)(1)(ii). This information is of little decisional value in most cases, because 90% of all abortions are performed during the first trimester7 when fetal age has less relevance than when the fetus nears viability. Nor can the information *922 required by the statute be justified as relevant to any "philosophic" or "social" argument, ante, at 872, either favoring or disfavoring the abortion decision in a particular case. In light of all of these facts, I conclude that the information requirements in § 3205(a)(1)(ii) and §§ 3205(a)(2)(i)—(iii) do not serve a useful purpose and thus constitute an unnecessary— and therefore undue—burden on the woman's constitutional liberty to decide to terminate her pregnancy.

Accordingly, while I disagree with Parts IV, V—B, and V—D of the joint opinion,8 I join the remainder of the Court's opinion.

1

 It is sometimes useful to view the issue of stare decisis from a historical perspective. In the last 19 years, 15 Justices have confronted the basic issue presented in Roe v.Wade, 410 U. S. 113 (1973). Of those, 11 have voted as the majority does today: Chief Justice Burger, Justices Douglas, Brennan, Stewart, Marshall, and Powell, and Justices Blackmun, O'Connor, Kennedy, Souter, and myself. Only four—all of whom happen to be on the Court today—have reached the opposite conclusion.

2

Professor Dworkin has made this comment on the issue:

"The suggestion that states are free to declare a fetus a person. . . . assumes that a state can curtail some persons' constitutional rights by adding new persons to the constitutional population. The constitutional rights of one citizen are of course very much affected by who or what else also has constitutional rights, because the rights of others may compete or conflict with his. So any power to increase the constitutional population by unilateral decision would be, in effect, a power to decrease rights the national Constitution grants to others.

". . . If a state could declare trees to be persons with a constitutional right to life, it could prohibit publishing newspapers or books in spite of the First Amendment's guarantee of free speech, which could not be understood as a license to kill. . . . Once we understand that the suggestion we are considering has that implication, we must reject it. If a fetus is not part of the constitutional population, under the national constitutional arrangement, then states have no power to overrule that national arrangement by themselves declaring that fetuses have rights competitive with the constitutional rights of pregnant women." Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. Chi. L. Rev. 381, 400— 401 (1992).

3

The state interest in protecting potential life may be compared to the state interest in protecting those who seek to immigrate to this country. A contemporary example is provided by the Haitians who have risked the perils of the sea in a desperate attempt to become "persons" protected by our laws. Humanitarian and practical concerns would support a state policy allowing those persons unrestricted entry; countervailing interests in population control support a policy of limiting the entry of these potential citizens. While the state interest in population control might be sufficient to justify strict enforcement of the immigration laws, that interest would not be sufficient to overcome a woman's liberty interest. Thus, a state interest in population control could not justify a state-imposed limit on family size or, for that matter, state-mandated abortions.

4

As we noted in that opinion, the State's "legitimate interest in protecting minor women from their own immaturity" distinguished that case from Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), which involved "a provision that required that mature women, capable of consenting to an abortion, wait 24 hours after giving consent before undergoing an abortion." Hodgson, 497 U. S., at 449, n. 35.

5

 The joint opinion's reliance on the indirect effects of the regulation of constitutionally protected activity, see ante, at 873-874, is misplaced; what matters is not only the effect of a regulation but also the reason for the regulation. As I explained in Hodgson:

"In cases involving abortion, as in cases involving the right to travel or the right to marry, the identification of the constitutionally protected interest is merely the beginning of the analysis. State regulation of travel and of marriage is obviously permissible even though a State may not categorically exclude nonresidents from its borders, Shapiro v. Thompson, 394 U. S. 618, 631 (1969), or deny prisoners the right to marry, Turner v. Safley, 482 U. S. 78, 94-99 (1987). But the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. Cf. Turner v. Safley, supra; Loving v. Virginia, 388 U. S. 1, 12 (1967). In the abortion area, a State may have no obligation to spend its own money, or use its own facilities, to subsidize nontherapeutic abortions for minors or adults. See, e. g., Maher v. Roe, 432 U. S. 464 (1977); cf. Webster v. Reproductive Health Services, 492 U. S. 490, 508-511 (1989); id., at 523-524 (O'Connor, J., concurring in part and concurring in judgment). A State's value judgment favoring childbirth over abortion may provide adequate support for decisions involving such allocation of public funds, but not for simply substituting a state decision for an individual decision that a woman has a right to make for herself. Otherwise, the interest in liberty protected by the Due Process Clause would be a nullity. A state policy favoring childbirth over abortion is not in itself a sufficient justification for overriding the woman's decision or for placing `obstacles—absolute or otherwise—in the pregnant woman's path to an abortion.' " 497 U. S., at 435.

6

 The meaning of any legal standard can only be understood by reviewing the actual cases in which it is applied. For that reason, I discount both Justice Scalia's comments on past descriptions of the standard, see post, at 988-990 (opinion concurring in judgment in part and dissenting in part), and the attempt to give it crystal clarity in the joint opinion. The several opinions supporting the judgment in Griswold v. Connecticut, 381 U. S. 479 (1965), are less illuminating than the central holding of the case, which appears to have passed the test of time. The future may also demonstrate that a standard that analyzes both the severity of a regulatory burden and the legitimacy of its justification will provide a fully adequate framework for the review of abortion legislation even if the contours of the standard are not authoritatively articulated in any single opinion.

7

 U. S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United States 71 (111th ed. 1991).

8

 Although I agree that a parental-consent requirement (with the appropriate bypass) is constitutional, I do not join Part V—D of the joint opinion because its approval of Pennsylvania's informed parental-consent requirement is based on the reasons given in Part V—B, with which I disagree.

Justice Blackmun, concurring in part, concurring in the judgment in part, and dissenting in part.

I join Parts I, II, III, V—A, V—C, and VI of the joint opinion of Justices O'Connor, Kennedy, and Souter, ante.

Three years ago, in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), four Members of this Court appeared poised to "cas[t] into darkness the hopes and visions of every woman in this country" who had come to believe that the Constitution guaranteed her the right to reproductive choice. Id., at 557 (Blackmun, J., dissenting). See id., at 499 (plurality opinion of Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at 532 (Scalia, J., concurring in part and concurring in judgment). All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame. Decisions since Webstergave little reason to hope that this flame would cast much light. See, e. g., Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 524 (1990) (Blackmun, J., dissenting). But now, just when so many expected the darkness to fall, the flame has grown bright.

*923 I do not underestimate the significance of today's joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.

I

Make no mistake, the joint opinion of Justices O'Connor, Kennedy, and Souter is an act of personal courage and constitutional principle. In contrast to previous decisions in which Justices O'Connor and Kennedy postponed reconsideration of Roe v. Wade, 410 U. S. 113 (1973), the authors of the joint opinion today join Justice Stevens and me in concluding that "the essential holding of Roe v. Wade should be retained and once again reaffirmed." Ante, at 846. In brief, five Members of this Court today recognize that "the Constitution protects a woman's right to terminate her pregnancy in its early stages." Ante, at 844.

A fervent view of individual liberty and the force of stare decisis have led the Court to this conclusion. Ante, at 853. Today a majority reaffirms that the Due Process Clause of the Fourteenth Amendment establishes "a realm of personal liberty which the government may not enter," ante, at 847— a realm whose outer limits cannot be determined by interpretations of the Constitution that focus only on the specific practices of States at the time the Fourteenth Amendment was adopted. See ante, at 848-849. Included within this realm of liberty is "`the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.' " Ante, at 851, quoting Eisenstadt v. Baird, 405 U. S. 438, 453 (1972) (emphasis in original). "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the *924 liberty protected by the Fourteenth Amendment." Ante, at 851 (emphasis added). Finally, the Court today recognizes that in the case of abortion, "the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear." Ante, at 852.

The Court's reaffirmation of Roe `s central holding is also based on the force of stare decisis. "[N]o erosion of principle going to liberty or personal autonomy has left Roe `s central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips." Ante, at 860-861. Indeed, the Court acknowledges that Roe `s limitation on state power could not be removed "without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it." Ante, at 855. In the 19 years since Roe was decided, that case has shaped more than reproductive planning—"[a]n entire generation has come of age free to assume Roe `s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions." Ante, at 860. The Court understands that, having "call[ed] the contending sides . . . to end their national division by accepting a common mandate rooted in the Constitution," ante, at 867, a decision to overrule Roe "would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law." Ante, at 865. What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch.

In striking down the Pennsylvania statute's spousal notification requirement, the Court has established a framework *925 for evaluating abortion regulations that responds to the social context of women facing issues of reproductive choice.1 In determining the burden imposed by the challenged regulation, the Court inquires whether the regulation's "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Ante, at 878 (emphasis added). The Court reaffirms: "The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." Ante, at 894. Looking at this group, the Court inquires, based on expert testimony, empirical studies, and common sense, whether "in a large fraction of the cases in which [the restriction] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion." Ante, at 895. "A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it." Ante, at 877. And in applying its test, the Court remains sensitive to the unique role of women in the decision making process. Whatever may have been the practice when the Fourteenth Amendment was adopted, the Court observes, "[w]omen do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family." Ante, at 898.2

*926 Lastly, while I believe that the joint opinion errs in failing to invalidate the other regulations, I am pleased that the joint opinion has not ruled out the possibility that these regulations may be shown to impose an unconstitutional burden. The joint opinion makes clear that its specific holdings are based on the insufficiency of the record before it. See, e. g., ante, at 885-886. I am confident that in the future evidence will be produced to show that "in a large fraction of the cases in which [these regulations are] relevant, [they] will operate as a substantial obstacle to a woman's choice to undergo an abortion." Ante, at 895.

II

Today, no less than yesterday, the Constitution and decisions of this Court require that a State's abortion restrictions be subjected to the strictest judicial scrutiny. Our precedents and the joint opinion's principles require us to subject all non-de-minimis abortion regulations to strict scrutiny. Under this standard, the Pennsylvania statute's provisions requiring content-based counseling, a 24-hour delay, informed parental consent, and reporting of abortion-related information must be invalidated.

A

The Court today reaffirms the long recognized rights of privacy and bodily integrity. As early as 1891, the Court held, "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others . . . ." Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891). Throughout this century, this Court also has held that the fundamental right of privacy protects citizens against governmental intrusion *927 in such intimate family matters as procreation, childrearing, marriage, and contraceptive choice. See ante, at 847-849. These cases embody the principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government. Eisenstadt, 405 U. S., at 453. In Roe v. Wade, this Court correctly applied these principles to a woman's right to choose abortion.

State restrictions on abortion violate a woman's right of privacy in two ways. First, compelled continuation of a pregnancy infringes upon a woman's right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. During pregnancy, women experience dramatic physical changes and a wide range of health consequences. Labor and delivery pose additional health risks and physical demands. In short, restrictive abortion laws force women to endure physical invasions far more substantial than those this Court has held to violate the constitutional principle of bodily integrity in other contexts. See, e. g., Winston v. Lee, 470 U. S. 753 (1985) (invalidating surgical removal of bullet from murder suspect); Rochin v. California, 342 U. S. 165 (1952) (invalidating stomach pumping).3

Further, when the State restricts a woman's right to terminate her pregnancy, it deprives a woman of the right to make her own decision about reproduction and family planning—critical life choices that this Court long has deemed central to the right to privacy. The decision to terminate or continue a pregnancy has no less an impact on a woman's life than decisions about contraception or marriage. 410 U. S., *928 at 153. Because motherhood has a dramatic impact on a woman's educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life. For these reasons, "the decision whether or not to beget or bear a child" lies at "the very heart of this cluster of constitutionally protected choices." Carey v. Population Services International, 431 U. S. 678, 685 (1977).

A State's restrictions on a woman's right to terminate her pregnancy also implicate constitutional guarantees of gender equality. State restrictions on abortion compel women to continue pregnancies they otherwise might terminate. By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption—that women can simply be forced to accept the "natural" status and incidents of motherhood—appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause. See, e. g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724-726 (1982); Craig v. Boren, 429 U. S. 190, 198-199 (1976).4 The joint opinion recognizes that these assumptions about women's place in society "are no longer consistent with our *929 understanding of the family, the individual, or the Constitution." Ante, at 897.

B

The Court has held that limitations on the right of privacy are permissible only if they survive "strict" constitutional scrutiny—that is, only if the governmental entity imposing the restriction can demonstrate that the limitation is both necessary and narrowly tailored to serve a compelling governmental interest. Griswold v. Connecticut, 381 U. S. 479, 485 (1965). We have applied this principle specifically in the context of abortion regulations. Roe v. Wade, 410 U. S., at 155.5

Roe implemented these principles through a framework that was designed "to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact," ante,at 872. Roe identified two relevant state interests: "an interest in preserving and protecting the health of the pregnant woman" and an interest in "protecting the potentiality of human life." 410 U. S., at 162. With respect to the State's interest in the health of the mother, "the `compelling' point . . . is at approximately the end of the first trimester," because it is at that point that the mortality rate in abortion approaches that in childbirth. Id., at 163. With respect to the State's interest in potential life, "the `compelling' point is at viability," because it is at that point that the *930 fetus "presumably has the capability of meaningful life outside the mother's womb." Ibid. In order to fulfill the requirement of narrow tailoring, "the State is obligated to 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." Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 434 (1983).

In my view, application of this analytical framework is no less warranted than when it was approved by seven Members of this Court in Roe. Strict scrutiny of state limitations on reproductive choice still offers the most secure protection of the woman's right to make her own reproductive decisions, free from state coercion. No majority of this Court has ever agreed upon an alternative approach. The factual premises of the trimester framework have not been undermined, see Webster, 492 U. S., at 553 (Blackmun, J., dissenting), and the Roe framework is far more administrable, and far less manipulable, than the "undue burden" standard adopted by the joint opinion.

Nonetheless, three criticisms of the trimester framework continue to be uttered. First, the trimester framework is attacked because its key elements do not appear in the text of the Constitution. My response to this attack remains the same as it was in Webster:

"Were this a true concern, we would have to abandon most of our constitutional jurisprudence. [T]he `critical elements' of countless constitutional doctrines nowhere appear in the Constitution's text . . . . The Constitution makes no mention, for example, of the First Amendment's `actual malice' standard for proving certain libels, see New York Times Co. v. Sullivan, 376 U. S. 254 (1964).. . . Similarly, the Constitution makes no mention of the rational-basis test, or the specific verbal formulations of intermediate and strict scrutiny by which this Court evaluates claims under the Equal Protection Clause. The reason is simple. Like the Roe framework, these *931 tests or standards are not, and do not purport to be, rights protected by the Constitution. Rather, they are judge-made methods for evaluating and measuring the strength and scope of constitutional rights or for balancing the constitutional rights of individuals against the competing interests of government." Id., at 548.

The second criticism is that the framework more closely resembles a regulatory code than a body of constitutional doctrine. Again, my answer remains the same as in Webster:

"[I]f this were a true and genuine concern, we would have to abandon vast areas of our constitutional jurisprudence. . . . Are [the distinctions entailed in the trimester framework] any finer, or more `regulatory,' than the distinctions we have often drawn in our First Amendment jurisprudence, where, for example, we have held that a `release time' program permitting public-school students to leave school grounds during school hours to receive religious instruction does not violate the Establishment Clause, even though a release-time program permitting religious instruction on school grounds does violate the Clause? Compare Zorach v. Clauson, 343 U. S. 306 (1952), with Illinois ex rel. Mc- Collum v. Board of Education of School Dist. No. 71, Champaign County, 333 U. S. 203 (1948). . . . Similarly, in a Sixth Amendment case, the Court held that although an overnight ban on attorney-client communication violated the constitutionally guaranteed right to counsel, Geders v. United States, 425 U. S. 80 (1976), that right was not violated when a trial judge separated a defendant from his lawyer during a 15-minute recess after the defendant's direct testimony. Perry v. Leeke, 488 U. S. 272 (1989).

"That numerous constitutional doctrines result in narrow differentiations between similar circumstances does *932 not mean that this Court has abandoned adjudication in favor of regulation." Id., at 549-550.

The final, and more genuine, criticism of the trimester framework is that it fails to find the State's interest in potential human life compelling throughout pregnancy. No Member of this Court—nor for that matter, the Solicitor General, see Tr. of Oral Arg. 42—has ever questioned our holding in Roe that an abortion is not "the termination of life entitled to Fourteenth Amendment protection." 410 U. S., at 159. Accordingly, a State's interest in protecting fetal life is not grounded in the Constitution. Nor, consistent with our Establishment Clause, can it be a theological or sectarian interest. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 778 (1986) (Stevens, J., concurring). It is, instead, a legitimate interest grounded in humanitarian or pragmatic concerns. See ante, at 914-915 (Stevens, J., concurring in part and dissenting in part).

But while a State has "legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child," ante, at 846, legitimate interests are not enough. To overcome the burden of strict scrutiny, the interests must be compelling. The question then is how best to accommodate the State's interest in potential human life with the constitutional liberties of pregnant women. Again, I stand by the views I expressed in Webster:

"I remain convinced, as six other Members of this Court 16 years ago were convinced, that the Roe framework, and the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State's interest in potential human life. The viability line reflects the biological facts and truths of fetal development; it marks that threshold moment prior to which a fetus cannot survive separate from the *933 woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman. At the same time, the viability standard takes account of the undeniable fact that as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling. As a practical matter, because viability follows `quickening'—the point at which a woman feels movement in her womb—and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion while providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy." 492 U. S., at 553-554.6

Roe`s trimester framework does not ignore the State's interest in prenatal life. Like Justice Stevens, ante, at 916, I agree that the State may take steps to ensure that a woman's choice "is thoughtful and informed," ante, at 872, and that "States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning." Ante, at 873. But

"[s]erious questions arise . . . when a State attempts to persuade the woman to choose childbirth over abortion. Ante, at 878. Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family; but it must respect *934 the individual's freedom to make such judgments." Ante, at 916 (Stevens, J., concurring in part and dissenting in part) (internal quotation marks omitted).

As the joint opinion recognizes, "the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it." Ante, at 877.

In sum, Roe `s requirement of strict scrutiny as implemented through a trimester framework should not be disturbed. No other approach has gained a majority, and no other is more protective of the woman's fundamental right. Lastly, no other approach properly accommodates the woman's constitutional right with the State's legitimate interests.

C

Application of the strict scrutiny standard results in the invalidation of all the challenged provisions. Indeed, as this Court has invalidated virtually identical provisions in prior cases, stare decisis requires that we again strike them down.

This Court has upheld informed- and written-consent requirements only where the State has demonstrated that they genuinely further important health-related state concerns. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 65-67 (1976). A State may not, under the guise of securing informed consent, "require the delivery of information `designed to influence the woman's informed choice between abortion or childbirth.' " Thornburgh, 476 U. S., at 760, quoting Akron,462 U. S., at 443-444. Rigid requirements that a specific body of information be imparted to a woman in all cases, regardless of the needs of the patient, improperly intrude upon the discretion of the pregnant woman's physician and thereby impose an "`undesired and uncomfortable straitjacket.' " Thornburgh, 476 U. S., at 762, quoting Danforth, 428 U. S., at 67, n. 8.

Measured against these principles, some aspects of the Pennsylvania informed-consent scheme are unconstitutional. *935 While it is unobjectionable for the Commonwealth to require that the patient be informed of the nature of the procedure, the health risks of the abortion and of childbirth, and the probable gestational age of the unborn child, compare Pa. Cons. Stat. §§ 3205(a)(i)-(iii) (1990) with Akron, 462 U. S., at 446, n. 37, I remain unconvinced that there is a vital state need for insisting that the information be provided by a physician rather than a counselor. Id., at 448. The District Court found that the physician-only requirement necessarily would increase costs to the plaintiff clinics, costs that undoubtedly would be passed on to patients. And because trained women counselors are often more understanding than physicians, and generally have more time to spend with patients, see App. 366-387, the physician-only disclosure requirement is not narrowly tailored to serve the Commonwealth's interest in protecting maternal health.

Sections 3205(a)(2)(i)-(iii) of the Act further requires that the physician or a qualified nonphysician inform the woman that printed materials are available from the Commonwealth that describe the fetus and provide information about medical assistance for childbirth, information about child support from the father, and a list of agencies offering adoption and other services as alternatives to abortion. Thornburgh invalidated biased patient-counseling requirements virtually identical to the one at issue here. What we said of those requirements fully applies in these cases:

"[T]he listing of agencies in the printed Pennsylvania form presents serious problems; it contains names of agencies that well may be out of step with the needs of the particular woman and thus places the physician in an awkward position and infringes upon his or her professional responsibilities. Forcing the physician or counselor to present the materials and the list to the woman makes him or her in effect an agent of the State in treating the woman and places his or her imprimatur upon both the materials and the list. All this is, or *936comes close to being, state medicine imposed upon the woman, not the professional medical guidance she seeks, and it officially structures—as it obviously was intended to do—the dialogue between the woman and her physician.

"The requirements . . . that the woman be advised that medical assistance benefits may be available, and that the father is responsible for financial assistance in the support of the child similarly are poorly disguised elements of discouragement for the abortion decision. Much of this . . . , for many patients, would be irrelevant and inappropriate. For a patient with a life-threatening pregnancy, the `information' in its very rendition may be cruel as well as destructive of the physician-patient relationship. As any experienced social worker or other counselor knows, theoretical financial responsibility often does not equate with fulfillment . . . . Under the guise of informed consent, the Act requires the dissemination of information that is not relevant to such consent, and, thus, it advances no legitimate state interest." 476 U. S., at 762-763 (citation omitted).

"This type of compelled information is the antithesis of informed consent," id., at 764, and goes far beyond merely describing the general subject matter relevant to the woman's decision. "That the Commonwealth does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination, reveals the anti-abortion character of the statute and its real purpose." Ibid.7

*937 The 24-hour waiting period following the provision of the foregoing information is also clearly unconstitutional. The District Court found that the mandatory 24-hour delay could lead to delays in excess of 24 hours, thus increasing health risks, and that it would require two visits to the abortion provider, thereby increasing travel time, exposure to further harassment, and financial cost. Finally, the District Court found that the requirement would pose especially significant burdens on women living in rural areas and those women that have difficulty explaining their whereabouts. 744 F. Supp. 1323, 1378-1379 (ED Pa. 1990). In Akron this Court invalidated a similarly arbitrary or inflexible waiting period because, as here, it furthered no legitimate state interest.8

As Justice Stevens insightfully concludes, the mandatory delay rests either on outmoded or unacceptable assumptions about the decision making capacity of women or the belief that the decision to terminate the pregnancy is *938presumptively wrong. Ante, at 918-919. The requirement that women consider this obvious and slanted information for an additional 24 hours contained in these provisions will only influence the woman's decision in improper ways. The vast majority of women will know this information—of the few that do not, it is less likely that their minds will be changed by this information than it will be either by the realization that the State opposes their choice or the need once again to endure abuse and harassment on return to the clinic.9

Except in the case of a medical emergency, § 3206 requires a physician to obtain the informed consent of a parent or guardian before performing an abortion on an unemancipated minor or an incompetent woman. Based on evidence in the record, the District Court concluded that, in order to fulfill the informed-consent requirement, generally accepted medical principles would require an in-person visit by the parent to the facility. 744 F. Supp., at 1382. Although the Court "has recognized that the State has somewhat broader authority to regulate the activities of children than of adults," the State nevertheless must demonstrate that there is a "significant state interest in conditioning an abortion . . . that is not present in the case of an adult." Danforth, 428 U. S., at 74-75 (emphasis added). The requirement of an in-person visit would carry with it the risk of a delay of several days or possibly weeks, even where the parent is willing to consent. While the State has an interest in encouraging parental involvement in the minor's abortion decision, § 3206 is not narrowly drawn to serve that interest.10

*939 Finally, the Pennsylvania statute requires every facility performing abortions to report its activities to the Commonwealth. Pennsylvania contends that this requirement is valid under Danforth, in which this Court held that recordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality are permissible. Id., at 79-81. The Commonwealth attempts to justify its required reports on the ground that the public has a right to know how its tax dollars are spent. A regulation designed to inform the public about public expenditures does not further the Commonwealth's interest in protecting maternal health. Accordingly, such a regulation cannot justify a legally significant burden on a woman's right to obtain an abortion.

The confidential reports concerning the identities and medical judgment of physicians involved in abortions at first glance may seem valid, given the Commonwealth's interest in maternal health and enforcement of the Act. The District Court found, however, that, notwithstanding the confidentiality protections, many physicians, particularly those who have previously discontinued performing abortions because of harassment, would refuse to refer patients to abortion clinics if their names were to appear on these reports. 744 F. Supp., at 1392. The Commonwealth has failed to show that the name of the referring physician either adds to the pool of scientific knowledge concerning abortion or is reasonably related to the Commonwealth's interest in maternal health. I therefore agree with the District Court's conclusion that the confidential reporting requirements are unconstitutional *940 insofar as they require the name of the referring physician and the basis for his or her medical judgment.

In sum, I would affirm the judgment in No. 91-902 and reverse the judgment in No. 91-744 and remand the cases for further proceedings.

III

At long last, The Chief Justice and those who have joined him admit it. Gone are the contentions that the issue need not be (or has not been) considered. There, on the first page, for all to see, is what was expected: "We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases." Post, at 944. If there is much reason to applaud the advances made by the joint opinion today, there is far more to fear from The Chief Justice's opinion.

The Chief Justice's criticism of Roe follows from his stunted conception of individual liberty. While recognizing that the Due Process Clause protects more than simple physical liberty, he then goes on to construe this Court's personal-liberty cases as establishing only a laundry list of particular rights, rather than a principled account of how these particular rights are grounded in a more general right of privacy. Post, at 951. This constricted view is reinforced by The Chief Justice's exclusive reliance on tradition as a source of fundamental rights. He argues that the record in favor of a right to abortion is no stronger than the record in Michael H. v. Gerald D., 491 U. S. 110 (1989), where the plurality found no fundamental right to visitation privileges by an adulterous father, or in Bowers v. Hardwick, 478 U. S. 186 (1986), where the Court found no fundamental right to engage in homosexual sodomy, or in a case involving the "`firing [of] a gun . . . into another person's body.' " Post, at 951-952. In The Chief Justice's world, a woman considering whether to terminate a pregnancy is entitled to no more protection than adulterers, murderers, and so-called sexual *941 deviates.11 Given The Chief Justice's exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts.

Even more shocking than The Chief Justice's cramped notion of individual liberty is his complete omission of any discussion of the effects that compelled childbirth and motherhood have on women's lives. The only expression of concern with women's health is purely instrumental—for The Chief Justice, only women's psychological health is a concern, and only to the extent that he assumes that every woman who decides to have an abortion does so without serious consideration of the moral implications of her decision. Post, at 967-968. In short, The Chief Justice's view of the State's compelling interest in maternal health has less to do with health than it does with compelling women to be maternal.

Nor does The Chief Justice give any serious consideration to the doctrine of stare decisis. For The Chief Justice, the facts that gave rise to Roe are surprisingly simple: "women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children." Post, at 955. This characterization of the issue thus allows The Chief Justice quickly to discard the joint opinion's reliance argument by asserting that "reproductive planning could take virtually immediate account of" a decision overruling Roe. Post, at 956 (internal quotation marks omitted).

The Chief Justice's narrow conception of individual liberty and stare decisis leads him to propose the same standard of review proposed by the plurality in Webster."States may regulate abortion procedures in ways rationally related to a legitimate state interest. Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483, 491 (1955); cf. Stanley v. Illinois, 405 U. S. 645, 651-653 (1972)." Post, at 966. The *942 Chief Justice then further weakens the test by providing an insurmountable requirement for facial challenges: Petitioners must "`show that no set of circumstances exists under which the [provision] would be valid.' " Post, at 973, quoting Ohio v. Akron Center for Reproductive Health, 497 U. S., at 514. In short, in his view, petitioners must prove that the statute cannot constitutionally be applied to anyone. Finally, in applying his standard to the spousal-notification provision, The Chief Justice contends that the record lacks any "hard evidence" to support the joint opinion's contention that a "large fraction" of women who prefer not to notify their husbands involve situations of battered women and unreported spousal assault. Post, at 974, n. 2. Yet throughout the explication of his standard, The Chief Justice never explains what hard evidence is, how large a fraction is required, or how a battered woman is supposed to pursue an as-applied challenge.

Under his standard, States can ban abortion if that ban is rationally related to a legitimate state interest—a standard which the United States calls "deferential, but not toothless." Yet when pressed at oral argument to describe the teeth, the best protection that the Solicitor General could offer to women was that a prohibition, enforced by criminal penalties, with no exception for the life of the mother, "could raise very serious questions." Tr. of Oral Arg. 48. Perhaps, the Solicitor General offered, the failure to include an exemption for the life of the mother would be "arbitrary and capricious." Id., at 49. If, as The Chief Justice contends, the undue burden test is made out of whole cloth, the so-called "arbitrary and capricious" limit is the Solicitor General's "new clothes."

Even if it is somehow "irrational" for a State to require a woman to risk her life for her child, what protection is offered for women who become pregnant through rape or incest? Is there anything arbitrary or capricious about a *943 State's prohibiting the sins of the father from being visited upon his offspring?12

But, we are reassured, there is always the protection of the democratic process. While there is much to be praised about our democracy, our country since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. A woman's right to reproductive choice is one of those fundamental liberties. Accordingly, that liberty need not seek refuge at the ballot box.

IV

In one sense, the Court's approach is worlds apart from that of The Chief Justice and Justice Scalia. And yet, in another sense, the distance between the two approaches is short—the distance is but a single vote.

I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.

1

 As I shall explain, the joint opinion and I disagree on the appropriate standard of review for abortion regulations. I do agree, however, that the reasons advanced by the joint opinion suffice to invalidate the spousal notification requirement under a strict scrutiny standard.

2

 I also join the Court's decision to uphold the medical emergency provision. As the Court notes, its interpretation is consistent with the essential holding ofRoe that "forbids a State to interfere with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health." Ante, at 880. As is apparent in my analysis below, however, this exception does not render constitutional the provisions which I conclude do not survive strict scrutiny.

3

 As the joint opinion acknowledges, ante, at 857, this Court has recognized the vital liberty interest of persons in refusing unwanted medical treatment. Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990). Just as the Due Process Clause protects the deeply personal decision of the individual to refuse medical treatment, it also must protect the deeply personal decision to obtain medical treatment, including a woman's decision to terminate a pregnancy.

4

 A growing number of commentators are recognizing this point. See, e. g., L. Tribe, American Constitutional Law § 15-10, pp. 1353-1359 (2d ed. 1988); Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 350-380 (1992); Sunstein, Neutrality in Constitutional Law (With Special Reference to Pornography, Abortion, and Surrogacy), 92 Colum. L. Rev. 1, 31-44 (1992); cf. Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 788-791 (1989) (similar analysis under the rubric of privacy); MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L. J. 1281, 1308-1324 (1991).

5

 To say that restrictions on a right are subject to strict scrutiny is not to say that the right is absolute. Regulations can be upheld if they have no significant impact on the woman's exercise of her right and are justified by important state health objectives. See, e. g., Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 65-67, 79-81 (1976) (upholding requirements of a woman's written consent and record keeping). But the Court today reaffirms the essential principle of Roe that a woman has the right "to choose to have an abortion before viability and to obtain it without undue interference from the State." Ante, at 846. Under Roe, any more than de minimis interference is undue.

6

 The joint opinion agrees with Roe`s conclusion that viability occurs at 23 or 24 weeks at the earliest. Compare ante, at 860, with Roe v. Wade, 410 U. S. 113, 160 (1973).

7

 While I do not agree with the joint opinion's conclusion that these provisions should be upheld, the joint opinion has remained faithful to principles this Court previously has announced in examining counseling provisions. For example, the joint opinion concludes that the "information the State requires to be made available to the woman" must be "truthful and not misleading." Ante, at 882. Because the State's information must be "calculated to inform the woman's free choice, not hinder it," ante, at 877, the measures must be designed to ensure that a woman's choice is "mature and informed," ante, at 883, not intimidated, imposed, or impelled. To this end, when the State requires the provision of certain information, the State may not alter the manner of presentation in order to inflict "psychological abuse," ante, at 893, designed to shock or unnerve a woman seeking to exercise her liberty right. This, for example, would appear to preclude a State from requiring a woman to view graphic literature or films detailing the performance of an abortion operation. Just as a visual preview of an operation to remove an appendix plays no part in a physician's securing informed consent to an appendectomy, a preview of scenes appurtenant to any major medical intrusion into the human body does not constructively inform the decision of a woman of the State's interest in the preservation of the woman's health or demonstrate the State's "profound respect for the life of the unborn." Ante, at 877.

8

 The Court's decision in Hodgson v. Minnesota, 497 U. S. 417 (1990), validating a 48-hour waiting period for minors seeking an abortion to permit parental involvement does not alter this conclusion. Here the 24-hour delay is imposed on an adult woman. See id., at 449-450, n. 35; Ohio v. Akron Center for Reproductive Health, Inc., 497 U. S. 502 (1990). Moreover, the statute in Hodgson did not require any delay once the minor obtained the affirmative consent of either a parent or the court.

9

 Because this information is so widely known, I am confident that a developed record can be made to show that the 24-hour delay, "in a large fraction of the cases in which [the restriction] is relevant, . . . will operate as a substantial obstacle to a woman's choice to undergo an abortion." Ante, at 895.

10

 The judicial-bypass provision does not cure this violation.Hodgson is distinguishable, since these cases involve more than parental involvement or approval—rather, the Pennsylvania law requires that the parent receive information designed to discourage abortion in a face-to-face meeting with the physician. The bypass procedure cannot ensure that the parent would obtain the information, since in many instances, the parent would not even attend the hearing. A State may not place any restriction on a young woman's right to an abortion,however irrational,simply because it has provided a judicial bypass.

11

 Obviously, I do not share The Chief Justice's views of homosexuality as sexual deviance. See Bowers, 478 U. S., at 202-203, n. 2.

12

 Justice Scalia urges the Court to "get out of this area," post, at 1002, and leave questions regarding abortion entirely to the States, post, at 999-1000. Putting aside the fact that what he advocates is nothing short of an abdication by the Court of its constitutional responsibilities, Justice Scalia is uncharacteristically naive if he thinks that overruling Roe and holding that restrictions on a woman's right to an abortion are subject only to rational-basis review will enable the Court henceforth to avoid reviewing abortion-related issues. State efforts to regulate and prohibit abortion in a post-Roe world undoubtedly would raise a host of distinct and important constitutional questions meriting review by this Court. For example, does the Eighth Amendment impose any limits on the degree or kind of punishment a State can inflict upon physicians who perform, or women who undergo, abortions? What effect would differences among States in their approaches to abortion have on a woman's right to engage in interstate travel? Does the First Amendment permit States that choose not to criminalize abortion to ban all advertising providing information about where and how to obtain abortions?

*944 Chief Justice Rehnquist, with whom Justice White, Justice Scalia, and Justice Thomas join, concurring in the judgment in part and dissenting in part.

The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, 410 U. S. 113 (1973), but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.

I

In ruling on this litigation below, the Court of Appeals for the Third Circuit first observed that "this appeal does not directly implicate Roe; this case involves the regulation of abortions rather than their outright prohibition." 947 F. 2d 682, 687 (1991). Accordingly, the court directed its attention to the question of the standard of review for abortion regulations. In attempting to settle on the correct standard, however, the court confronted the confused state of this Court's abortion jurisprudence. After considering the several opinions in Webster v. Reproductive Health Services, supra, and Hodgson v. Minnesota, 497 U. S. 417 (1990), the Court of Appeals concluded that Justice O'Connor's "undue burden" test was controlling, as that was the narrowest ground on which we had upheld recent abortion regulations. 947 F. 2d, at 693-697 ("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" (quoting Marks v. United States, 430 U. S. 188, 193 (1977) (internal quotation marks omitted))). Applying this standard, the Court of Appeals upheld all of the challenged regulations except the one *945 requiring a woman to notify her spouse of an intended abortion.

In arguing that this Court should invalidate each of the provisions at issue, petitioners insist that we reaffirm our decision in Roe v. Wade, supra, in which we held unconstitutional a Texas statute making it a crime to procure an abortion except to save the life of the mother.1 We agree with the Court of Appeals that our decision in Roe is not directly implicated by the Pennsylvania statute, which does not prohibit, but simply regulates, abortion. But, as the Court of Appeals found, the state of our post-Roe decisional law dealing with the regulation of abortion is confusing and uncertain, indicating that a reexamination of that line of cases is in order. Unfortunately for those who must apply this Court's decisions, the reexamination undertaken today leaves the Court no less divided than beforehand. Although they reject the trimester framework that formed the underpinning of Roe, Justices O'Connor, Kennedy, and Souter adopt a revised undue burden standard to analyze the challenged regulations. We conclude, however, that such an outcome is an unjustified constitutional compromise, one which leaves the Court in a position to closely scrutinize all types of abortion regulations despite the fact that it lacks the power to do so under the Constitution.

In Roe, the Court opined that the State "does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, . . . and that it has still another important and legitimate interest in protecting *946 the potentiality of human life." 410 U. S., at 162 (emphasis omitted). In the companion case of Doe v. Bolton, 410 U. S. 179 (1973), the Court referred to its conclusion in Roe "that a pregnant woman does not have an absolute constitutional right to an abortion on her demand." 410 U. S., at 189. But while the language and holdings of these cases appeared to leave States free to regulate abortion procedures in a variety of ways, later decisions based on them have found considerably less latitude for such regulations than might have been expected.

For example, after Roe, many States have sought to protect their young citizens by requiring that a minor seeking an abortion involve her parents in the decision. Some States have simply required notification of the parents, while others have required a minor to obtain the consent of her parents. In a number of decisions, however, the Court has substantially limited the States in their ability to impose such requirements. With regard to parental notice requirements, we initially held that a State could require a minor to notify her parents before proceeding with an abortion. H. L. v. Matheson, 450 U. S. 398, 407-410 (1981). Recently, however, we indicated that a State's ability to impose a notice requirement actually depends on whether it requires notice of one or both parents. We concluded that although the Constitution might allow a State to demand that notice be given to one parent prior to an abortion, it may not require that similar notice be given to two parents, unless the State incorporates a judicial bypass procedure in that two-parent requirement. Hodgson v. Minnesota, supra.

We have treated parental consent provisions even more harshly. Three years after Roe, we invalidated a Missouri regulation requiring that an unmarried woman under the age of 18 obtain the consent of one of her parents before proceeding with an abortion. We held that our abortion jurisprudence prohibited the State from imposing such a "blanket provision. . . requiring the consent of a parent." Planned Parenthood *947 of Central Mo. v. Danforth, 428 U. S. 52, 74 (1976). In Bellotti v. Baird, 443 U. S. 622 (1979), the Court struck down a similar Massachusetts parental consent statute. A majority of the Court indicated, however, that a State could constitutionally require parental consent, if it alternatively allowed a pregnant minor to obtain an abortion without parental consent by showing either that she was mature enough to make her own decision, or that the abortion would be in her best interests. See id., at 643-644 (plurality opinion); id., at 656-657 (White, J., dissenting). In light of Bellotti, we have upheld one parental consent regulation which incorporated a judicial bypass option we viewed as sufficient, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983), but have invalidated another because of our belief that the judicial procedure did not satisfy the dictates of Bellotti, see Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 439-442 (1983). We have never had occasion, as we have in the parental notice context, to further parse our parental consent jurisprudence into one-parent and two-parent components.

In Roe, the Court observed that certain States recognized the right of the father to participate in the abortion decision in certain circumstances. Because neither Roenor Doe involved the assertion of any paternal right, the Court expressly stated that the case did not disturb the validity of regulations that protected such a right. Roe v. Wade, supra, at 165, n. 67. But three years later, in Danforth, the Court extended its abortion jurisprudence and held that a State could not require that a woman obtain the consent of her spouse before proceeding with an abortion. Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 69-71.

States have also regularly tried to ensure that a woman's decision to have an abortion is an informed and well-considered one. In Danforth, we upheld a requirement that a woman sign a consent form prior to her abortion, and observed that "it is desirable and imperative that [the decision] *948 be made with full knowledge of its nature and consequences." Id., at 67. Since that case, however, we have twice invalidated state statutes designed to impart such knowledge to a woman seeking an abortion. In Akron, we held unconstitutional a regulation requiring a physician to inform a woman seeking an abortion of the status of her pregnancy, the development of her fetus, the date of possible viability, the complications that could result from an abortion, and the availability of agencies providing assistance and information with respect to adoption and childbirth. Akronv. Akron Center for Reproductive Health, supra, at 442-445. More recently, in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986), we struck down a more limited Pennsylvania regulation requiring that a woman be informed of the risks associated with the abortion procedure and the assistance available to her if she decided to proceed with her pregnancy, because we saw the compelled information as "the antithesis of informed consent." Id., at 764. Even when a State has sought only to provide information that, in our view, was consistent with the Roe framework, we concluded that the State could not require that a physician furnish the information, but instead had to alternatively allow nonphysician counselors to provide it. Akron v. Akron Center for Reproductive Health, 462 U. S., at 448-449. In Akron as well, we went further and held that a State may not require a physician to wait 24 hours to perform an abortion after receiving the consent of a woman. Although the State sought to ensure that the woman's decision was carefully considered, the Court concluded that the Constitution forbade the State to impose any sort of delay. Id., at 449-451.

We have not allowed States much leeway to regulate even the actual abortion procedure. Although a State can require that second-trimester abortions be performed in outpatient clinics, see Simopoulos v. Virginia, 462 U. S. 506 (1983),we concluded in Akron and Ashcroft that a State could not *949 require that such abortions be performed only in hospitals. See Akron v. Akron Center for Reproductive Health, supra, at 437-439; Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, supra, at 481-482. Despite the fact that Roe expressly allowed regulation after the first trimester in furtherance of maternal health, "`present medical knowledge,' " in our view, could not justify such a hospitalization requirement under the trimester framework. Akron v. Akron Center for Reproductive Health, supra, at 437 (quoting Roe v. Wade, supra, at 163). And in Danforth, the Court held that Missouri could not outlaw the saline amniocentesis method of abortion, concluding that the Missouri Legislature had "failed to appreciate and to consider several significant facts" in making its decision. 428 U. S., at 77.

Although Roe allowed state regulation after the point of viability to protect the potential life of the fetus, the Court subsequently rejected attempts to regulate in this manner. In Colautti v. Franklin, 439 U. S. 379 (1979), the Court struck down a statute that governed the determination of viability. Id., at 390-397. In the process, we made clear that the trimester framework incorporated only one definition of viability—ours—as we forbade States to decide that a certain objective indicator—"be it weeks of gestation or fetal weight or any other single factor"—should govern the definition of viability. Id., at 389. In that same case, we also invalidated a regulation requiring a physician to use the abortion technique offering the best chance for fetal survival when performing postviability abortions. See id., at 397-401; see also Thornburgh v. American College of Obstetricians and Gynecologists,476 U. S., at 768-769 (invalidating a similar regulation). In Thornburgh, the Court struck down Pennsylvania's requirement that a second physician be present at post viability abortions to help preserve the health of the unborn child, on the ground that it did not incorporate a sufficient medical emergency exception. Id., at 769-771. Regulations governing the treatment of aborted fetuses have *950 met a similar fate. In Akron, we invalidated a provision requiring physicians performing abortions to "insure that the remains of the unborn child are disposed of in a humane and sanitary manner." 462 U. S., at 451 (internal quotation marks omitted).

Dissents in these cases expressed the view that the Court was expanding upon Roe in imposing ever greater restrictions on the States. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 783 (Burger, C. J., dissenting) ("The extent to which the Court has departed from the limitations expressed in Roe is readily apparent"); id., at 814 (White, J., dissenting) ("[T]he majority indiscriminately strikes down statutory provisions that in no way contravene the right recognized in Roe "). And, when confronted with state regulations of this type in past years, the Court has become increasingly more divided: The three most recent abortion cases have not commanded a Court opinion. See Ohio v. Akron Center for Reproductive Health, 497 U. S. 502 (1990); Hodgson v. Minnesota, 497 U. S. 417 (1990); Webster v. Reproductive Health Services, 492 U. S. 490 (1989).

The task of the Court of Appeals in the present cases was obviously complicated by this confusion and uncertainty. Following Marks v. United States, 430 U. S. 188 (1977), it concluded that in light of Webster and Hodgson, the strict scrutiny standard enunciated in Roe was no longer applicable, and that the "undue burden" standard adopted by Justice O'Connor was the governing principle. This state of confusion and disagreement warrants reexamination of the "fundamental right" accorded to a woman's decision to abort a fetus in Roe, with its concomitant requirement that any state regulation of abortion survive "strict scrutiny." See Payne v. Tennessee, 501 U. S. 808, 827-828 (1991) (observing that reexamination of constitutional decisions is appropriate when those decisions have generated uncertainty and failed to provide clear guidance, because "correction through legislative *951 action is practically impossible" (internal quotation marks omitted)); Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546-547, 557 (1985).

We have held that a liberty interest protected under the Due Process Clause of the Fourteenth Amendment will be deemed fundamental if it is "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U. S. 319, 325 (1937). Three years earlier, in Snyder v. Massachusetts, 291 U. S. 97 (1934), we referred to a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id., at 105; see also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) (plurality opinion) (citing the language from Snyder). These expressions are admittedly not precise, but our decisions implementing this notion of "fundamental" rights do not afford any more elaborate basis on which to base such a classification.

In construing the phrase "liberty" incorporated in the Due Process Clause of the Fourteenth Amendment, we have recognized that its meaning extends beyond freedom from physical restraint. In Pierce v. Society of Sisters, 268 U. S. 510 (1925), we held that it included a parent's right to send a child to private school; in Meyer v. Nebraska, 262 U. S. 390 (1923), we held that it included a right to teach a foreign language in a parochial school. Building on these cases, we have held that the term "liberty" includes a right to marry, Loving v. Virginia, 388 U. S. 1 (1967); a right to procreate, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); and a right to use contraceptives, Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972). But a reading of these opinions makes clear that they do not endorse any all-encompassing "right of privacy."

In Roe v. Wade, the Court recognized a "guarantee of personal privacy" which "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U. S., at 152-153. We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier *952 opinions upon which it based its decision much too broadly. Unlike marriage, procreation, and contraception, abortion "involves the purposeful termination of a potential life." Harris v. McRae, 448 U. S. 297, 325 (1980). The abortion decision must therefore "be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy." Thornburgh v. American College of Obstetricians and Gynecologists, supra, at 792(White, J., dissenting). One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of a fetus. See Michael H. v. Gerald D., supra, at 124, n. 4 (To look "at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people [is] like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person's body").

Nor do the historical traditions of the American people support the view that the right to terminate one's pregnancy is "fundamental." The common law which we inherited from England made abortion after "quickening" an offense. At the time of the adoption of the Fourteenth Amendment, statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then-37 States and 8 Territories had statutes banning or limiting abortion. J. Mohr, Abortion in America 200 (1978). By the turn of the century virtually every State had a law prohibiting or restricting abortion on its books. By the middle of the present century, a liberalization trend had set in. But 21 of the restrictive abortion laws in effect in 1868 were still in effect in 1973 when Roe was decided, and an overwhelming majority of the States prohibited abortion unless necessary to preserve the life or health of the mother. Roe v. Wade, 410 U. S., at 139-140; id., at 176-177, n. 2 (Rehnquist, J., dissenting). On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history *953 supported the classification of the right to abortion as "fundamental" under the Due Process Clause of the Fourteenth Amendment.

We think, therefore, both in view of this history and of our decided cases dealing with substantive liberty under the Due Process Clause, that the Court was mistaken in Roe when it classified a woman's decision to terminate her pregnancy as a "fundamental right" that could be abridged only in a manner which withstood "strict scrutiny." In so concluding, we repeat the observation made in Bowers v. Hardwick, 478 U. S. 186 (1986):

"Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." Id., at 194.

We believe that the sort of constitutionally imposed abortion code of the type illustrated by our decisions following Roe is inconsistent "with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does." Webster v. Reproductive Health Services, 492 U. S., at 518 (plurality opinion). The Court in Roe reached too far when it analogized the right to abort a fetus to the rights involved in Pierce, Meyer, Loving, and Griswold,and thereby deemed the right to abortion fundamental.

II

The joint opinion of Justices O'Connor, Kennedy, and Souter cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that "the immediate question is not the soundness of Roe `s resolution of the issue, but the precedential force that must be accorded to its holding." Ante, at 871. Instead of claiming that Roe *954 was correct as a matter of original constitutional interpretation, the opinion therefore contains an elaborate discussion of stare decisis. This discussion of the principle of stare decisis appears to be almost entirely dicta, because the joint opinion does not apply that principle in dealing with Roe. Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to "strict scrutiny" and could be justified only in the light of "compelling state interests." The joint opinion rejects that view. Ante, at 872-873; see Roe v. Wade, supra, at 162-164. Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court's decision making for 19 years. The joint opinion rejects that framework. Ante, at 873.

Stare decisis is defined in Black's Law Dictionary as meaning "to abide by, or adhere to, decided cases." Black's Law Dictionary 1406 (6th ed. 1990). Whatever the "central holding" of Roe that is left after the joint opinion finishes dissecting it is surely not the result of that principle. While purporting to adhere to precedent, the joint opinion instead revises it. Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. Decisions following Roe, 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), are frankly overruled in part under the "undue burden" standard expounded in the joint opinion. Ante, at 881-884.

In our view, authentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact. "Stare decisis is not . . . a universal, inexorable command," especially in cases involving the interpretation of the Federal Constitution. Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405 (1932) (Brandeis, J., dissenting). Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for *955constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that "depar[t] from a proper understanding" of the Constitution. Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S., at 557; see United States v. Scott, 437 U. S. 82, 101 (1978) ("`[I]n cases involving the Federal Constitution, . . . [t]he Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function'" (quoting Burnet v. Coronado Oil & Gas Co., supra, at 406-408 (Brandeis, J., dissenting))); Smith v. Allwright, 321 U. S. 649, 665 (1944). Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question. See, e. g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943); Erie R. Co. v. Tompkins, 304 U. S. 64, 74-78 (1938).

The joint opinion discusses several stare decisis factors which, it asserts, point toward retaining a portion of Roe. Two of these factors are that the main "factual underpinning" of Roe has remained the same, and that its doctrinal foundation is no weaker now than it was in 1973. Ante, at 857-860. Of course, what might be called the basic facts which gave rise to Roe have remained the same—women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children. But this is only to say that the same facts which gave rise to Roe will continue to give rise to similar cases. It is not a reason, in and of itself, why those cases must be decided in the same incorrect manner as was the first case to deal with the question. And surely there is no requirement, in considering whether to depart from stare decisis in a constitutional case, that a decision be more wrong now than it was at the time it was rendered. If that were true, the most outlandish constitutional decision could survive *956 forever, based simply on the fact that it was no more outlandish later than it was when originally rendered.

Nor does the joint opinion faithfully follow this alleged requirement. The opinion frankly concludes that Roe and its progeny were wrong in failing to recognize that the State's interests in maternal health and in the protection of unborn human life exist throughout pregnancy. Ante, at 871-873. But there is no indication that these components of Roe are any more incorrect at this juncture than they were at its inception.

The joint opinion also points to the reliance interests involved in this context in its effort to explain why precedent must be followed for precedent's sake. Certainly it is true that where reliance is truly at issue, as in the case of judicial decisions that have formed the basis for private decisions, "[c]onsiderations in favor of stare decisis are at their acme." Payne v. Tennessee, 501 U. S., at 828. But, as the joint opinion apparently agrees, ante, at 855-856, any traditional notion of reliance is not applicable here. The Court today cuts back on the protection afforded by Roe,and no one claims that this action defeats any reliance interest in the disavowed trimester framework. Similarly, reliance interests would not be diminished were the Court to go further and acknowledge the full error of Roe, as "reproductive planning could take virtually immediate account of" this action. Ante, at 856.

The joint opinion thus turns to what can only be described as an unconventional—and unconvincing—notion of reliance, a view based on the surmise that the availability of abortion since Roe has led to "two decades of economic and social developments" that would be undercut if the error of Roe were recognized. Ante, at 856. The joint opinion's assertion of this fact is undeveloped and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring. Surely it is dubious to suggest that women have reached their "places in society" in *957 reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society's increasing recognition of their ability to fill positions that were previously thought to be reserved only for men. Ante, at 856.

In the end, having failed to put forth any evidence to prove any true reliance, the joint opinion's argument is based solely on generalized assertions about the national psyche, on a belief that the people of this country have grown accustomed to the Roe decision over the last 19 years and have "ordered their thinking and living around" it. Ante, at 856. As an initial matter, one might inquire how the joint opinion can view the "central holding" of Roe as so deeply rooted in our constitutional culture, when it so casually uproots and disposes of that same decision's trimester framework. Furthermore, at various points in the past, the same could have been said about this Court's erroneous decisions that the Constitution allowed "separate but equal" treatment of minorities, see Plessy v. Ferguson, 163 U. S. 537 (1896), or that "liberty" under the Due Process Clause protected "freedom of contract," see Adkins v. Children's Hospital of District of Columbia, 261 U. S. 525 (1923); Lochner v. New York, 198 U. S. 45 (1905). The "separate but equal" doctrine lasted 58 years after Plessy, and Lochner `s protection of contractual freedom lasted 32 years. However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here. See Brown v. Board of Education, 347 U. S. 483 (1954) (rejecting the "separate but equal" doctrine); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937) (overruling Adkins v. Children's Hospital, supra, in upholding Washington's minimum wage law).

Apparently realizing that conventional stare decisis principles do not support its position, the joint opinion advances a belief that retaining a portion of Roe is necessary to protect *958 the "legitimacy" of this Court. Ante, at 861-869. Because the Court must take care to render decisions "grounded truly in principle," and not simply as political and social compromises, ante, at 865, the joint opinion properly declares it to be this Court's duty to ignore the public criticism and protest that may arise as a result of a decision. Few would quarrel with this statement, although it may be doubted that Members of this Court, holding their tenure as they do during constitutional "good behavior," are at all likely to be intimidated by such public protests.

But the joint opinion goes on to state that when the Court "resolve[s] the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases," its decision is exempt from reconsideration under established principles of stare decisis in constitutional cases. Ante, at 866. This is so, the joint opinion contends, because in those "intensely divisive" cases the Court has "call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," and must therefore take special care not to be perceived as "surrender[ing] to political pressure" and continued opposition. Ante, at 866, 867. This is a truly novel principle, one which is contrary to both the Court's historical practice and to the Court's traditional willingness to tolerate criticism of its opinions. Under this principle, when the Court has ruled on a divisive issue, it is apparently prevented from overruling that decision for the sole reason that it was incorrect, unless opposition to the original decision has died away.

The first difficulty with this principle lies in its assumption that cases that are "intensely divisive" can be readily distinguished from those that are not. The question of whether a particular issue is "intensely divisive" enough to qualify for special protection is entirely subjective and dependent on the individual assumptions of the Members of this Court. In addition, because the Court's duty is to ignore public opinion and criticism on issues that come before it, its Members are *959 in perhaps the worst position to judge whether a decision divides the Nation deeply enough to justify such uncommon protection. Although many of the Court's decisions divide the populace to a large degree, we have not previously on that account shied away from applying normal rules of stare decisis when urged to reconsider earlier decisions. Over the past 21 years, for example, the Court has overruled in whole or in part 34 of its previous constitutional decisions. See Payne v. Tennessee, supra, at 828-830, and n. 1 (listing cases).

The joint opinion picks out and discusses two prior Court rulings that it believes are of the "intensely divisive" variety, and concludes that they are of comparable dimension to Roe. Ante, at 861-864 (discussing Lochner v. New York, supra, and Plessy v. Ferguson, supra ). It appears to us very odd indeed that the joint opinion chooses as benchmarks two cases in which the Court chose not to adhere to erroneous constitutional precedent, but instead enhanced its stature by acknowledging and correcting its error, apparently in violation of the joint opinion's "legitimacy" principle. See West Coast Hotel Co. v. Parrish, supra; Brown v. Board of Education, supra. One might also wonder how it is that the joint opinion puts these, and not others, in the "intensely divisive" category, and how it assumes that these are the only two lines of cases of comparable dimension to Roe. There is no reason to think that either Plessy or Lochner produced the sort of public protest when they were decided that Roe did. There were undoubtedly large segments of the bench and bar who agreed with the dissenting views in those cases, but surely that cannot be what the Court means when it uses the term "intensely divisive," or many other cases would have to be added to the list. In terms of public protest, however, Roe, so far as we know, was unique. But just as the Court should not respond to that sort of protest by retreating from the decision simply to allay the concerns of the protesters, it should likewise not respond by determining to adhere to the *960 decision at all costs lest it seem to be retreating under fire. Public protests should not alter the normal application of stare decisis, lest perfectly lawful protest activity be penalized by the Court itself.

Taking the joint opinion on its own terms, we doubt that its distinction between Roe, on the one hand, and Plessy and Lochner, on the other, withstands analysis. The joint opinion acknowledges that the Court improved its stature by overruling Plessy in Brown on a deeply divisive issue. And our decision in West Coast Hotel,which overruled Adkins v. Children's Hospital, supra, and Lochner, was rendered at a time when Congress was considering President Franklin Roosevelt's proposal to "reorganize" this Court and enable him to name six additional Justices in the event that any Member of the Court over the age of 70 did not elect to retire. It is difficult to imagine a situation in which the Court would face more intense opposition to a prior ruling than it did at that time, and, under the general principle proclaimed in the joint opinion, the Court seemingly should have responded to this opposition by stubbornly refusing to reexamine the Lochner rationale, lest it lose legitimacy by appearing to "overrule under fire." Ante, at 867.

The joint opinion agrees that the Court's stature would have been seriously damaged if in Brown and West Coast Hotel it had dug in its heels and refused to apply normal principles of stare decisis to the earlier decisions. But the opinion contends that the Court was entitled to overrule Plessy and Lochner in those cases, despite the existence of opposition to the original decisions, only because both the Nation and the Court had learned new lessons in the interim. This is at best a feebly supported, post hoc rationalization for those decisions.

For example, the opinion asserts that the Court could justifiably overrule its decision in Lochner only because the Depression had convinced "most people" that constitutional protection of contractual freedom contributed to an economy *961 that failed to protect the welfare of all. Ante, at 861. Surely the joint opinion does not mean to suggest that people saw this Court's failure to uphold minimum wage statutes as the cause of the Great Depression! In any event, the LochnerCourt did not base its rule upon the policy judgment that an unregulated market was fundamental to a stable economy; it simple believed, erroneously, that "liberty" under the Due Process Clause protected the "right to make a contract." Lochner v. New York, 198 U. S., at 53. Nor is it the case that the people of this Nation only discovered the dangers of extreme laissez-faire economics because of the Depression. State laws regulating maximum hours and minimum wages were in existence well before that time. A Utah statute of that sort enacted in 1896 was involved in our decision in Holden v. Hardy, 169 U. S. 366 (1898), and other States followed suit shortly afterwards, see, e. g., Muller v. Oregon, 208 U. S. 412 (1908); Bunting v. Oregon, 243 U. S. 426 (1917). These statutes were indeed enacted because of a belief on the part of their sponsors that "freedom of contract" did not protect the welfare of workers, demonstrating that that belief manifested itself more than a generation before the Great Depression. Whether "most people" had come to share it in the hard times of the 1930's is, insofar as anything the joint opinion advances, entirely speculative. The crucial failing at that time was not that workers were not paid a fair wage, but that there was no work available at any wage.

When the Court finally recognized its error in West Coast Hotel, it did not engage in the post hoc rationalization that the joint opinion attributes to it today; it did not state that Lochner had been based on an economic view that had fallen into disfavor, and that it therefore should be overruled. Chief Justice Hughes in his opinion for the Court simply recognized what Justice Holmes had previously recognized in his Lochner dissent, that "[t]he Constitution does not speak of freedom of contract." West Coast Hotel Co. v. Parrish, 300 U. S., at 391; Lochnerv. New York, supra, at 75 (Holmes, *962 J., dissenting) ("[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire "). Although the Court did acknowledge in the last paragraph of its opinion the state of affairs during the then-current Depression, the theme of the opinion is that the Court had been mistaken as a matter of constitutional law when it embraced "freedom of contract" 32 years previously.

The joint opinion also agrees that the Court acted properly in rejecting the doctrine of "separate but equal" in Brown. In fact, the opinion lauds Brown in comparing it to Roe. Ante, at 867. This is strange, in that under the opinion's "legitimacy" principle the Court would seemingly have been forced to adhere to its erroneous decision in Plessy because of its "intensely divisive" character. To us, adherence to Roe today under the guise of "legitimacy" would seem to resemble more closely adherence to Plessy on the same ground. Fortunately, the Court did not choose that option in Brown, and instead frankly repudiated Plessy. The joint opinion concludes that such repudiation was justified only because of newly discovered evidence that segregation had the effect of treating one race as inferior to another. But it can hardly be argued that this was not urged upon those who decided Plessy, as Justice Harlan observed in his dissent that the law at issue "puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law." Plessy v. Ferguson, 163 U. S., at 562. It is clear that the same arguments made before the Court in Brown were made in Plessy as well. The Court in Brown simply recognized, as Justice Harlan had recognized beforehand, that the Fourteenth Amendment does not permit racial segregation. The rule of Brown is not tied to popular opinion about the evils of segregation; it is a judgment that the Equal Protection Clause does not permit racial segregation, no matter whether the public might come to believe that it is beneficial. On that ground it stands, and on that ground *963 alone the Court was justified in properly concluding that the Plessy Court had erred.

There is also a suggestion in the joint opinion that the propriety of overruling a "divisive" decision depends in part on whether "most people" would now agree that it should be overruled. Either the demise of opposition or its progression to substantial popular agreement apparently is required to allow the Court to reconsider a divisive decision. How such agreement would be ascertained, short of a public opinion poll, the joint opinion does not say. But surely even the suggestion is totally at war with the idea of "legitimacy" in whose name it is invoked. The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty, and should be no more subject to the vagaries of public opinion than is the basic judicial task.

There are other reasons why the joint opinion's discussion of legitimacy is unconvincing as well. In assuming that the Court is perceived as "surrender[ing] to political pressure" when it overrules a controversial decision, ante, at 867, the joint opinion forgets that there are two sides to any controversy. The joint opinion asserts that, in order to protect its legitimacy, the Court must refrain from overruling a controversial decision lest it be viewed as favoring those who oppose the decision. But a decision to adhere to prior precedent is subject to the same criticism, for in such a case one can easily argue that the Court is responding to those who have demonstrated in favor of the original decision. The decision in Roehas engendered large demonstrations, including repeated marches on this Court and on Congress, both in opposition to and in support of that opinion. A decision either way on Roe can therefore be perceived as favoring one group or the other. But this perceived dilemma arises only if one assumes, as the joint opinion does, that the Court *964 should make its decisions with a view toward speculative public perceptions. If one assumes instead, as the Court surely did in both Brown and West Coast Hotel, that the Court's legitimacy is enhanced by faithful interpretation of the Constitution irrespective of public opposition, such self-engendered difficulties may be put to one side.

Roe is not this Court's only decision to generate conflict. Our decisions in some recent capital cases, and in Bowers v. Hardwick, 478 U. S. 186 (1986), have also engendered demonstrations in opposition. The joint opinion's message to such protesters appears to be that they must cease their activities in order to serve their cause, because their protests will only cement in place a decision which by normal standards of stare decisis should be reconsidered. Nearly a century ago, Justice David J. Brewer of this Court, in an article discussing criticism of its decisions, observed that "many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all." Justice Brewer on "The Nation's Anchor," 57 Albany L. J. 166, 169 (1898). This was good advice to the Court then, as it is today. Strong and often misguided criticism of a decision should not render the decision immune from reconsideration, lest a fetish for legitimacy penalize freedom of expression.

The end result of the joint opinion's paeans of praise for legitimacy is the enunciation of a brand new standard for evaluating state regulation of a woman's right to abortion— the "undue burden" standard. As indicated above, Roe v. Wade adopted a "fundamental right" standard under which state regulations could survive only if they met the requirement of "strict scrutiny." While we disagree with that standard, it at least had a recognized basis in constitutional law at the time Roe was decided. The same cannot be said for the "undue burden" standard, which is created largely out of whole cloth by the authors of the joint opinion. It is a standard which even today does not command the support of a majority of this Court. And it will not, we believe, result *965 in the sort of "simple limitation," easily applied, which the joint opinion anticipates. Ante, at 855. In sum, it is a standard which is not built to last.

In evaluating abortion regulations under that standard, judges will have to decide whether they place a "substantial obstacle" in the path of a woman seeking an abortion. Ante, at 877. In that this standard is based even more on a judge's subjective determinations than was the trimester framework, the standard will do nothing to prevent "judges from roaming at large in the constitutional field" guided only by their personal views. Griswold v. Connecticut, 381 U. S., at 502 (Harlan, J., concurring in judgment). Because the undue burden standard is plucked from nowhere, the question of what is a "substantial obstacle" to abortion will undoubtedly engender a variety of conflicting views. For example, in the very matter before us now, the authors of the joint opinion would uphold Pennsylvania's 24-hour waiting period, concluding that a "particular burden" on some women is not a substantial obstacle. Ante, at 887. But the authors would at the same time strike down Pennsylvania's spousal notice provision, after finding that in a "large fraction" of cases the provision will be a substantial obstacle. Ante, at 895. And, while the authors conclude that the informed consent provisions do not constitute an "undue burden," Justice Stevens would hold that they do. Ante, at 920-922.

Furthermore, while striking down the spousal notice regulation, the joint opinion would uphold a parental consent restriction that certainly places very substantial obstacles in the path of a minor's abortion choice. The joint opinion is forthright in admitting that it draws this distinction based on a policy judgment that parents will have the best interests of their children at heart, while the same is not necessarily true of husbands as to their wives. Ante, at 895. This may or may not be a correct judgment, but it is quintessentially a legislative one. The "undue burden" inquiry does not in any way supply the distinction between parental consent and *966spousal consent which the joint opinion adopts. Despite the efforts of the joint opinion, the undue burden standard presents nothing more workable than the trimester framework which it discards today. Under the guise of the Constitution, this Court will still impart its own preferences on the States in the form of a complex abortion code.

The sum of the joint opinion's labors in the name of stare decisis and "legitimacy" is this: Roe v. Wade stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor "legitimacy" are truly served by such an effort.

We have stated above our belief that the Constitution does not subject state abortion regulations to heightened scrutiny. Accordingly, we think that the correct analysis is that set forth by the plurality opinion in Webster. A woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways rationally related to a legitimate state interest. Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483, 491 (1955); cf. Stanley v. Illinois, 405 U. S. 645, 651-653 (1972). With this rule in mind, we examine each of the challenged provisions.

III

A

Section 3205 of the Act imposes certain requirements related to the informed consent of a woman seeking an abortion. 18 Pa. Cons. Stat. § 3205 (1990). Section 3205(a)(1) requires that the referring or performing physician must inform a woman contemplating an abortion of (i) the nature of the procedure and the risks and alternatives that a reasonable patient would find material; (ii) the fetus' probable gestational *967 age; and (iii) the medical risks involved in carrying her pregnancy to term. Section 3205(a)(2) requires a physician or a nonphysician counselor to inform the woman that (i) the state health department publishes free materials describing the fetus at different stages and listing abortion alternatives; (ii) medical assistance benefits may be available for prenatal, childbirth, and neonatal care; and (iii) the child's father is liable for child support. The Act also imposes a 24-hour waiting period between the time that the woman receives the required information and the time that the physician is allowed to perform the abortion. See Appendix to opinion of O'Connor, Kennedy, and Souter, JJ., ante, at 902-904.

This Court has held that it is certainly within the province of the States to require a woman's voluntary and informed consent to an abortion. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 760. Here, Pennsylvania seeks to further its legitimate interest in obtaining informed consent by ensuring that each woman "is aware not only of the reasons for having an abortion, but also of the risks associated with an abortion and the availability of assistance that might make the alternative of normal childbirth more attractive than it might otherwise appear." Id., at 798-799 (White, J., dissenting).

We conclude that this provision of the statute is rationally related to the State's interest in assuring that a woman's consent to an abortion be a fully informed decision.

Section 3205(a)(1) requires a physician to disclose certain information about the abortion procedure and its risks and alternatives. This requirement is certainly no large burden, as the Court of Appeals found that "the record shows that the clinics, without exception, insist on providing this information to women before an abortion is performed." 947 F. 2d, at 703. We are of the view that this information "clearly is related to maternal health and to the State's legitimate purpose in requiring informed consent." Akron v. *968 Akron Center for Reproductive Health, Inc., 462 U. S., at 446. An accurate description of the gestational age of the fetus and of the risks involved in carrying a child to term helps to further both those interests and the State's legitimate interest in unborn human life. See id., at 445-446, n. 37 (required disclosure of gestational age of the fetus "certainly is not objectionable"). Although petitioners contend that it is unreasonable for the State to require that a physician, as opposed to a nonphysician counselor, disclose this information, we agree with the Court of Appeals that a State "may rationally decide that physicians are better qualified than counselors to impart this information and answer questions about the medical aspects of the available alternatives." 947 F. 2d, at 704.

Section 3205(a)(2) compels the disclosure, by a physician or a counselor, of information concerning the availability of paternal child support and state-funded alternatives if the woman decides to proceed with her pregnancy. Here again, the Court of Appeals observed that "the record indicates that most clinics already require that a counselor consult in person with the woman about alternatives to abortion before the abortion is performed." Id., at 704-705. And petitioners do not claim that the information required to be disclosed by statute is in any way false or inaccurate; indeed, the Court of Appeals found it to be "relevant, accurate, and noninflammatory." Id., at 705. We conclude that this required presentation of "balanced information" is rationally related to the State's legitimate interest in ensuring that the woman's consent is truly informed, Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 830 (O'Connor, J., dissenting), and in addition furthers the State's interest in preserving unborn life. That the information might create some uncertainty and persuade some women to forgo abortions does not lead to the conclusion that the Constitution forbids the provision of such information. Indeed, it only demonstrates that this information might *969 very well make a difference, and that it is therefore relevant to a woman's informed choice. Cf. id., at 801 (White, J., dissenting) ("[T]he ostensible objective of Roe v. Wade is not maximizing the number of abortions, but maximizing choice"). We acknowledge that in Thornburgh this Court struck down informed consent requirements similar to the ones at issue here. See id., at 760-764. It is clear, however, that while the detailed framework of Roe led to the Court's invalidation of those informational requirements, they "would have been sustained under any traditional standard of judicial review, . . . or for any other surgical procedure except abortion." Webster v. Reproductive Health Services, 492 U. S., at 517 (plurality opinion) (citing Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 802 (White, J., dissenting); id., at 783 (Burger, C. J., dissenting)). In light of our rejection of Roe `s "fundamental right" approach to this subject, we do not regard Thornburgh as controlling.

For the same reason, we do not feel bound to follow this Court's previous holding that a State's 24-hour mandatory waiting period is unconstitutional. See Akron v. Akron Center for Reproductive Health, Inc., supra, at 449-451. Petitioners are correct that such a provision will result in delays for some women that might not otherwise exist, therefore placing a burden on their liberty. But the provision in no way prohibits abortions, and the informed consent and waiting period requirements do not apply in the case of a medical emergency. See 18 Pa. Cons. Stat. §§ 3205(a), (b) (1990). We are of the view that, in providing time for reflection and reconsideration, the waiting period helps ensure that a woman's decision to abort is a well-considered one, and reasonably furthers the State's legitimate interest in maternal health and in the unborn life of the fetus. It "is surely a small cost to impose to ensure that the woman's decision is well considered in light of its certain and irreparable consequences *970 on fetal life, and the possible effects on her own." 462 U. S., at 474 (O'Connor, J., dissenting).

B

In addition to providing her own informed consent, before an unemancipated woman under the age of 18 may obtain an abortion she must either furnish the consent of one of her parents, or must opt for the judicial procedure that allows her to bypass the consent requirement. Under the judicial bypass option, a minor can obtain an abortion if a state court finds that she is capable of giving her informed consent and has indeed given such consent, or determines that an abortion is in her best interests. Records of these court proceedings are kept confidential. The Act directs the state trial court to render a decision within three days of the woman's application, and the entire procedure, including appeal to Pennsylvania Superior Court, is to last no longer than eight business days. The parental consent requirement does not apply in the case of a medical emergency. 18 Pa. Cons. Stat. § 3206 (1990). See Appendix to opinion of O'Connor, Kennedy, and Souter, JJ., ante, at 904-906.

This provision is entirely consistent with this Court's previous decisions involving parental consent requirements. See Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983) (upholding parental consent requirement with a similar judicial bypass option); Akron v. Akron Center for Reproductive Health, Inc., supra, at 439-440 (approving of parental consent statutes that include a judicial bypass option allowing a pregnant minor to "demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests"); Bellotti v. Baird, 443 U. S. 622 (1979).

We think it beyond dispute that a State "has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes *971 impair their ability to exercise their rights wisely." Hodgson v. Minnesota, 497 U. S., at 444 (opinion of Stevens, J.). A requirement of parental consent to abortion, like myriad other restrictions placed upon minors in other contexts, is reasonably designed to further this important and legitimate state interest. In our view, it is entirely "rational and fair for the State to conclude that, in most instances, the family will strive to give a lonely or even terrified minor advice that is both compassionate and mature." Ohio v. Akron Center for Reproductive Health, 497 U. S., at 520 (opinion of Kennedy, J.); see also Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 91 (Stewart, J., concurring) ("There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child"). We thus conclude that Pennsylvania's parental consent requirement should be upheld.

C

Section 3209 of the Act contains the spousal notification provision. It requires that, before a physician may perform an abortion on a married woman, the woman must sign a statement indicating that she has notified her husband of her planned abortion. A woman is not required to notify her husband if (1) her husband is not the father, (2) her husband, after diligent effort, cannot be located, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) the woman has reason to believe that notifying her husband is likely to result in the infliction of bodily injury upon her by him or by another individual. In addition, a woman is exempted from the notification requirement in the case of a medical emergency. 18 Pa. Cons. Stat. § 3209 (1990). See Appendix to opinion of O'Connor, Kennedy, and Souter, JJ., ante, at 908-909.

*972 We first emphasize that Pennsylvania has not imposed a spousal consent requirement of the type the Court struck down in Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 67-72. Missouri's spousal consent provision was invalidated in that case because of the Court's view that it unconstitutionally granted to the husband "a veto power exercisable for any reason whatsoever or for no reason at all." Id., at 71. But the provision here involves a much less intrusive requirement of spousal notification, not consent. Such a law requiring only notice to the husband "does not give any third party the legal right to make the [woman's] decision for her, or to prevent her from obtaining an abortion should she choose to have one performed." Hodgson v. Minnesota, supra, at 496 (Kennedy, J., concurring in judgment in part and dissenting in part); see H. L. v. Matheson, 450 U. S., at 411, n. 17. Danforth thus does not control our analysis. Petitioners contend that it should, however; they argue that the real effect of such a notice requirement is to give the power to husbands to veto a woman's abortion choice. The District Court indeed found that the notification provision created a risk that some woman who would otherwise have an abortion will be prevented from having one. 947 F. 2d, at 712. For example, petitioners argue, many notified husbands will prevent abortions through physical force, psychological coercion, and other types of threats. But Pennsylvania has incorporated exceptions in the notice provision in an attempt to deal with these problems. For instance, a woman need not notify her husband if the pregnancy is the result of a reported sexual assault, or if she has reason to believe that she would suffer bodily injury as a result of the notification. 18 Pa. Cons. Stat. § 3209(b) (1990). Furthermore, because this is a facial challenge to the Act, it is insufficient for petitioners to show that the notification provision "might operate unconstitutionally under some conceivable set of circumstances." United States v. Salerno, 481 U. S. 739, 745 (1987). Thus, it is not enough for petitioners *973 to show that, in some "worst case" circumstances, the notice provision will operate as a grant of veto power to husbands. Ohio v. Akron Center for Reproductive Health, 497 U. S., at 514. Because they are making a facial challenge to the provision, they must "show that no set of circumstances exists under which the [provision] would be valid." Ibid. (internal quotation marks omitted). This they have failed to do.2

*974 The question before us is therefore whether the spousal notification requirement rationally furthers any legitimate state interests. We conclude that it does. First, a husband's interests in procreation within marriage and in the potential life of his unborn child are certainly substantial ones. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 69 ("We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying"); id., at 93 (White, J., concurring in part and dissenting in part); Skinner v. Oklahoma ex rel. Williamson, 316 U. S., at 541. The State itself has legitimate interests both in protecting these interests of the father and in protecting the potential life of the fetus, and the spousal notification requirement is reasonably related to advancing those state interests. By providing that a husband will usually know of his spouse's intent to have an abortion, the provision makes it more likely that the husband will participate in deciding the fate of his unborn child, a possibility that might otherwise have been denied him. This participation might in some cases result in a decision to proceed with the pregnancy. As Judge Alito observed in his dissent below, "[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems—such as economic constraints, future plans, or the husbands' previously expressed *975opposition—that may be obviated by discussion prior to the abortion." 947 F. 2d, at 726 (opinion concurring in part and dissenting in part).

The State also has a legitimate interest in promoting "the integrity of the marital relationship." 18 Pa. Cons. Stat. § 3209(a) (1990). This Court has previously recognized "the importance of the marital relationship in our society." Planned Parenthood of Central Mo. v. Danforth, supra, at 69. In our view, the spousal notice requirement is a rational attempt by the State to improve truthful communication between spouses and encourage collaborative decision making, and thereby fosters marital integrity. See Labine v. Vincent, 401 U. S. 532, 538 (1971) ("[T]he power to make rules to establish, protect, and strengthen family life" is committed to the state legislatures). Petitioners argue that the notification requirement does not further any such interest; they assert that the majority of wives already notify their husbands of their abortion decisions, and the remainder have excellent reasons for keeping their decisions a secret. In the first case, they argue, the law is unnecessary, and in the second case it will only serve to foster marital discord and threats of harm. Thus, petitioners see the law as a totally irrational means of furthering whatever legitimate interest the State might have. But, in our view, it is unrealistic to assume that every husband-wife relationship is either (1) so perfect that this type of truthful and important communication will take place as a matter of course, or (2) so imperfect that, upon notice, the husband will react selfishly, violently, or contrary to the best interests of his wife. See Planned Parenthood of Central Mo. v. Danforth, supra, at 103-104 (Stevens, J., concurring in part and dissenting in part) (making a similar point in the context of a parental consent statute). The spousal notice provision will admittedly be unnecessary in some circumstances, and possibly harmful in others, but "the existence of particular cases in which a feature of a statute performs no function (or is even counter productive) *976 ordinarily does not render the statute unconstitutional or even constitutionally suspect." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 800 (White, J., dissenting). The Pennsylvania Legislature was in a position to weigh the likely benefits of the provision against its likely adverse effects, and presumably concluded, on balance, that the provision would be beneficial. Whether this was a wise decision or not, we cannot say that it was irrational. We therefore conclude that the spousal notice provision comports with the Constitution. See Harris v. McRae, 448 U. S., at 325-326 ("It is not the mission of this Court or any other to decide whether the balance of competing interests . . . is wise social policy").

D

The Act also imposes various reporting requirements. Section 3214(a) requires that abortion facilities file a report on each abortion performed. The reports do not include the identity of the women on whom abortions are performed, but they do contain a variety of information about the abortions. For example, each report must include the identities of the performing and referring physicians, the gestational age of the fetus at the time of abortion, and the basis for any medical judgment that a medical emergency existed. See 18 Pa. Cons. Stat. §§ 3214(a)(1), (5), (10) (1990). See Appendix to opinion of O'Connor, Kennedy, and Souter, JJ., ante, at 909-911. The District Court found that these reports are kept completely confidential. 947 F. 2d, at 716. We further conclude that these reporting requirements rationally further the State's legitimate interests in advancing the state of medical knowledge concerning maternal health and prenatal life, in gathering statistical information with respect to patients, and in ensuring compliance with other provisions of the Act.

Section 3207 of the Act requires each abortion facility to file a report with its name and address, as well as the names *977 and addresses of any parent, subsidiary, or affiliated organizations. 18 Pa. Cons. Stat. § 3207(b) (1990). Section 3214(f) further requires each facility to file quarterly reports stating the total number of abortions performed, broken down by trimester. Both of these reports are available to the public only if the facility received state funds within the preceding 12 months. See Appendix to opinion of O'Connor, Kennedy, and Souter, JJ., ante, at 906, 911. Petitioners do not challenge the requirement that facilities provide this information. They contend, however, that the forced public disclosure of the information given by facilities receiving public funds serves no legitimate state interest. We disagree. Records relating to the expenditure of public funds are generally available to the public under Pennsylvania law. See Pa. Stat. Ann., Tit. 65, §§ 66.1, 66.2 (Purdon 1959 and Supp. 1991-1992). As the Court of Appeals observed, "[w]hen a state provides money to a private commercial enterprise, there is a legitimate public interest in informing taxpayers who the funds are benefiting and what services the funds are supporting." 947 F. 2d, at 718. These reporting requirements rationally further this legitimate state interest.

E

Finally, petitioners challenge the medical emergency exception provided for by the Act. The existence of a medical emergency exempts compliance with the Act's informed consent, parental consent, and spousal notice requirements. See 18 Pa. Cons. Stat. §§ 3205(a), 3206(a), 3209(c) (1990). The Act defines a "medical emergency" as

"[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial *978 and irreversible impairment of major bodily function." § 3203.

Petitioners argued before the District Court that the statutory definition was inadequate because it did not cover three serious conditions that pregnant women can suffer— preeclampsia, inevitable abortion, and prematurely ruptured membrane. The District Court agreed with petitioners that the medical emergency exception was inadequate, but the Court of Appeals reversed this holding. In construing the medical emergency provision, the Court of Appeals first observed that all three conditions do indeed present the risk of serious injury or death when an abortion is not performed, and noted that the medical profession's uniformly prescribed treatment for each of the three conditions is an immediate abortion. See 947 F. 2d, at 700-701. Finding that "[t]he Pennsylvania legislature did not choose the wording of its medical emergency exception in a vacuum," the court read the exception as intended "to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman." Id., at 701. It thus concluded that the exception encompassed each of the three dangerous conditions pointed to by petitioners.

We observe that Pennsylvania's present definition of medical emergency is almost an exact copy of that State's definition at the time of this Court's ruling in Thornburgh, one which the Court made reference to with apparent approval. 476 U. S., at 771 ("It is clear that the Pennsylvania Legislature knows how to provide a medical-emergency exception when it chooses to do so").3 We find that the interpretation *979 of the Court of Appeals in these cases is eminently reasonable, and that the provision thus should be upheld. When a woman is faced with any condition that poses a "significant threat to [her] life or health," she is exempted from the Act's consent and notice requirements and may proceed immediately with her abortion.

IV

For the reasons stated, we therefore would hold that each of the challenged provisions of the Pennsylvania statute is consistent with the Constitution. It bears emphasis that our conclusion in this regard does not carry with it any necessary approval of these regulations. Our task is, as always, to decide only whether the challenged provisions of a law comport with the United States Constitution. If,as we believe,these do,their wisdom as a matter of public policy is for the people of Pennsylvania to decide.

1

 Two years after Roe, the West German constitutional court, by contrast, struck down a law liberalizing access to abortion on the grounds that life developing within the womb is constitutionally protected. Judgment of February 25, 1975, 39 BVerfGE 1 (translated in Jonas & Gorby, West German Abortion Decision: A Contrast to Roe v. Wade, 9 John Marshall J. Prac. & Proc. 605 (1976)). In 1988, the Canadian Supreme Court followed reasoning similar to that of Roe in striking down a law that restricted abortion. Morgentaler v. Queen, 1 S. C. R. 30, 44 D. L. R. 4th 385 (1988).

2

 The joint opinion of Justices O'Connor, Kennedy, and Souter appears to ignore this point in concluding that the spousal notice provision imposes an undue burden on the abortion decision. Ante,at 887-898. In most instances the notification requirement operates without difficulty. As the District Court found, the vast majority of wives seeking abortions notify and consult with their husbands, and thus suffer no burden as a result of the provision. 744 F. Supp. 1323, 1360 (ED Pa. 1990). In other instances where a woman does not want to notify her husband, the Act provides exceptions. For example, notification is not required if the husband is not the father, if the pregnancy is the result of a reported spousal sexual assault, or if the woman fears bodily injury as a result of notifying her husband. Thus, in these instances as well, the notification provision imposes no obstacle to the abortion decision.

The joint opinion puts to one side these situations where the regulation imposes no obstacle at all,and instead focuses on the group of married women who would not otherwise notify their husbands and who do not qualify for one of the exceptions. Having narrowed the focus, the joint opinion concludes that in a "large fraction" of those cases, the notification provision operates as a substantial obstacle, ante, at 895, and that the provision is therefore invalid. There are certainly instances where a woman would prefer not to notify her husband, and yet does not qualify for an exception. For example, there are the situations of battered women who fear psychological abuse or injury to their children as a result of notification; because in these situations the women do not fear bodily injury, they do not qualify for an exception. And there are situations where a woman has become pregnant as a result of an unreported spousal sexual assault; when such an assault is unreported, no exception is available. But, as the District Court found, there are also instances where the woman prefers not to notify her husband for a variety of other reasons. See 744 F. Supp., at 1360. For example, a woman might desire to obtain an abortion without her husband's knowledge because of perceived economic constraints or her husband's previously expressed opposition to abortion. The joint opinion concentrates on the situations involving battered women and unreported spousal assault, and assumes, without any support in the record, that these instances constitute a "large fraction" of those cases in which women prefer not to notify their husbands (and do not qualify for an exception). Ante, at 895. This assumption is not based on any hard evidence, however. And were it helpful to an attempt to reach a desired result, one could just as easily assume that the battered women situations form 100 percent of the cases where women desire not to notify, or that they constitute only 20 percent of those cases. But reliance on such speculation is the necessary result of adopting the undue burden standard.

3

 The definition in use at that time provided as follows:

"`Medical emergency.'That condition which, on the basis of the physician's best clinical judgment, so complicates a pregnancy as to necessitate the immediate abortion of same to avert the death of the mother or for which a 24-hour delay will create grave peril of immediate and irreversible loss of major bodily function." Pa. Stat.Ann., Tit.18, § 3203(Purdon 1983).

Justice Scalia, with whom The Chief Justice, Justice White, and Justice Thomas join, concurring in the judgment in part and dissenting in part.

My views on this matter are unchanged from those I set forth in my separate opinions in Webster v. Reproductive Health Services, 492 U. S. 490, 532 (1989) (opinion concurring in part and concurring in judgment), and Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 520 (1990) (Akron II) (concurring opinion). The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, "where reasonable people disagree the government can adopt one position or the other." Ante, at 851. The Court is correct in adding the qualification that this "assumes a state of affairs in which the choice does not intrude upon a protected liberty," ibid. —but the crucial part of that qualification *980 is the penultimate word. A State's choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a "liberty" in the absolute sense. Laws against bigamy, for example—with which entire societies of reasonable people disagree—intrude upon men and women's liberty to marry and live with one another. But bigamy happens not to be a liberty specially "protected" by the Constitution.

That is, quite simply, the issue in these cases: not whether the power of a woman to abort her unborn child is a "liberty" in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.1 Akron II, supra, at 520 (Scalia, J., concurring).

*981 The Court destroys the proposition, evidently meant to represent my position, that "liberty" includes "only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified," ante, at 847 (citing Michael H. v. Gerald D.,491 U. S. 110, 127, n. 6 (1989) (opinion of Scalia, J.)). That is not, however, what Michael H. says; it merely observes that, in defining "liberty," we may not disregard a specific, "relevant tradition protecting, or denying protection to, the asserted right," ibid. But the Court does not wish to be fettered by any such limitations on its preferences. The Court's statement that it is "tempting" to acknowledge the authoritativeness of tradition in order to "cur[b] the discretion of federal judges," ante, at 847, is of course rhetoric rather than reality; no government official is "tempted" to place restraints upon his own freedom of action, which is why Lord Act on did not say "Power tends to purify." The Court's temptation is in the quite opposite and more natural direction—towards systematically eliminating checks upon its own power; and it succumbs.

Beyond that brief summary of the essence of my position, I will not swell the United States Reports with repetition of what I have said before; and applying the rational basis test, I would uphold the Pennsylvania statute in its entirety. I must, however, respond to a few of the more outrageous arguments in today's opinion, which it is beyond human nature to leave unanswered. I shall discuss each of them under a quotation from the Court's opinion to which they pertain.

"The inescapable fact is that adjudication of substantive due process claims may call upon the Court*982 in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment." Ante, at 849.

Assuming that the question before us is to be resolved at such a level of philosophical abstraction, in such isolation from the traditions of American society, as by simply applying "reasoned judgment," I do not see how that could possibly have produced the answer the Court arrived at in Roe v. Wade, 410 U. S. 113 (1973). Today's opinion describes the methodology of Roe, quite accurately, as weighing against the woman's interest the State's "`important and legitimate interest in protecting the potentiality of human life.' " Ante, at 871 (quoting Roe, supra, at 162). But "reasoned judgment" does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere "potentiality of human life." See, e. g., Roe, supra, at 162; Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 61 (1976); Colautti v. Franklin, 439 U. S. 379, 386 (1979); Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 428 (1983) (Akron I); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 482 (1983). The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its "balancing" is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.

The authors of the joint opinion, of course, do not squarely contend that Roe v. Wade was a correct application of "reasoned judgment"; merely that it must be followed, because of stare decisis. Ante, at 853, 861, 871. But in their exhaustive discussion of all the factors that go into the determination *983 of when stare decisis should be observed and when disregarded, they never mention "how wrong was the decision on its face?" Surely, if "[t]he Court's power lies . .. in its legitimacy, a product of substance and perception," ante, at 865, the "substance" part of the equation demands that plain error be acknowledged and eliminated. Roe was plainly wrong—even on the Court's methodology of "reasoned judgment," and even more so (of course) if the proper criteria of text and tradition are applied.

The emptiness of the "reasoned judgment" that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in these and other cases, the best the Court can do to explain how it is that the word "liberty" must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice. The right to abort, we are told, inheres in "liberty" because it is among "a person's most basic decisions," ante, at 849; it involves a "most intimate and personal choic[e]," ante, at 851; it is "central to personal dignity and autonomy," ibid.; it "originate[s] within the zone of conscience and belief," ante, at 852; it is "too intimate and personal" for state interference, ibid.; it reflects "intimate views" of a "deep, personal character," ante, at 853; it involves "intimate relationships" and notions of "personal autonomy and bodily integrity," ante, at 857; and it concerns a particularly "`important decisio[n],' " ante,at 859 (citation omitted).2 But it is *984 obvious to anyone applying "reasoned judgment" that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today's majority, see Bowers v. Hardwick, 478 U. S. 186 (1986)) has held are not entitled to constitutional protection—because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally "intimate" and "deep[ly] personal" decisions involving "personal autonomy and bodily integrity," and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court's decision; only personal predilection. Justice Curtis's warning is as timely today as it was 135 years ago:

"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (dissenting opinion). "Liberty finds no refuge in a jurisprudence of doubt." Ante, at 844.

One might have feared to encounter this august and sonorous phrase in an opinion defending the real Roe v. Wade, rather than the revised version fabricated today by the authors *985 of the joint opinion. The shortcomings of Roe did not include lack of clarity: Virtually all regulation of abortion before the third trimester was invalid. But to come across this phrase in the joint opinion—which calls upon federal district judges to apply an "undue burden" standard as doubtful in application as it is unprincipled in origin—is really more than one should have to bear.

The joint opinion frankly concedes that the amorphous concept of "undue burden" has been inconsistently applied by the Members of this Court in the few brief years since that "test" was first explicitly propounded by Justice O'Connor in her dissent in Akron I, 462 U. S. 416 (1983). See ante, at 876.3 Because the three Justices now wish to "set forth a standard of general application," the joint opinion announces that "it is important to clarify what is meant by an undue burden." Ibid. I certainly agree with that, but I do not agree that the joint opinion succeeds in the announced endeavor. To the contrary, its efforts at clarification *986 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 *987 possibly mean what it says. Any regulation of abortion that is intended to advance what the joint opinion concedes is the State's "substantial" interest in protecting unborn life will be "calculated [to] hinder" a decision to have an abortion. It thus seems more accurate to say that the joint opinion would uphold abortion regulations only if they do not unduly hinder the woman's decision. That, of course, brings us right back to square one: Defining an "undue burden" as an "undue hindrance" (or a "substantial obstacle") hardly "clarifies" the test. Consciously or not, the joint opinion's verbal shell game will conceal raw judicial policy choices concerning what is "appropriate" abortion legislation.

The ultimately standard less nature of the "undue burden" inquiry is a reflection of the underlying fact that the concept has no principled or coherent legal basis. As The Chief Justice points out, Roe `s strict-scrutiny standard "at least had a recognized basis in constitutional law at the time Roe was decided," ante, at 964, while "[t]he same cannot be said for the `undue burden' standard, which is created largely out of whole cloth by the authors of the joint opinion," ibid. The joint opinion is flatly wrong in asserting that "our jurisprudence relating to all liberties save perhaps abortion has recognized" the permissibility of laws that do not impose an "undue burden." Ante, at 873. It argues that the abortion right is similar to other rights in that a law "not designed to strike at the right itself, [but which] has the incidental effect of making it more difficult or more expensive to [exercise the right,]" is not invalid. Ante, at 874. I agree, indeed I have *988 forcefully urged, that a law of general applicability which places only an incidental burden on a fundamental right does not infringe that right, see R. A. V. v. St. Paul, 505 U. S. 377, 389-390 (1992); Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878-882 (1990), but that principle does not establish the quite different (and quite dangerous) proposition that a law which directly regulates a fundamental right will not be found to violate the Constitution unless it imposes an "undue burden." It is that, of course, which is at issue here: Pennsylvania has consciously and directly regulated conduct that our cases have held is constitutionally protected. The appropriate analogy, therefore, is that of a state law requiring purchasers of religious books to endure a 24-hour waiting period, or to pay a nominal additional tax of 1¢. The joint opinion cannot possibly be correct in suggesting that we would uphold such legislation on the ground that it does not impose a "substantial obstacle" to the exercise of First Amendment rights. The "undue burden" standard is not at all the generally applicable principle the joint opinion pretends it to be; rather, it is a unique concept created specially for these cases, to preserve some judicial foothold in this ill-gotten territory. In claiming otherwise, the three Justices show their willingness to place all constitutional rights at risk in an effort to preserve what they deem the "central holding in Roe. " Ante,at 873.

The rootless nature of the "undue burden" standard, a phrase plucked out of context from our earlier abortion decisions, see n. 3, supra, is further reflected in the fact that the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in Justice O'Connor's earlier opinions. Ante, at 876-877. Those opinions stated that a statute imposes an "undue burden" if it imposes "absolute obstacles or severe limitations on the abortion decision," Akron I, 462 U. S., at 464 (dissenting opinion) (emphasis added); see also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 828 (1986) (dissenting *989 opinion). Those strong adjectives are conspicuously missing from the joint opinion, whose authors have for some unexplained reason now determined that a burden is "undue" if it merely imposes a "substantial" obstacle to abortion decisions. See, e. g., ante, at 895, 901. Justice O'Connor has also abandoned (again without explanation) the view she expressed in Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983) (dissenting opinion), that a medical regulation which imposes an "undue burden" could nevertheless be upheld if it "reasonably relate[s] to the preservation and protection of maternal health," id., at 505 (citation and internal quotation marks omitted). In today's version, even health measures will be upheld only "if they do not constitute an undue burden," ante, at 878 (emphasis added). Gone too is Justice O'Connor's statement that "the State possesses compelling interests in the protection of potential human life . . . throughout pregnancy," Akron I, supra, at 461(dissenting opinion) (emphasis added); see also Ashcroft, supra, at 505 (O'Connor, J., concurring in judgment in part and dissenting in part); Thornburgh, supra, at 828 (O'Connor, J., dissenting); instead, the State's interest in unborn human life is stealthily downgraded to a merely "substantial" or "profound" interest, ante, at 876, 878. (That had to be done, of course, since designating the interest as "compelling" throughout pregnancy would have been, shall we say, a "substantial obstacle" to the joint opinion's determined effort to reaffirm what it views as the "central holding" of Roe. See Akron I, 462 U. S., at 420, n. 1.) And "viability" is no longer the "arbitrary" dividing line previously decried by Justice O'Connor in Akron I, id., at 461; the Court now announces that "the attainment of viability may continue to serve as the critical fact," ante, at 860.5 It is difficult to *990 maintain the illusion that we are interpreting a Constitution rather than inventing one, when we amend its provisions so breezily.

Because the portion of the joint opinion adopting and describing the undue burden test provides no more useful guidance than the empty phrases discussed above, one must turn to the 23 pages applying that standard to the present facts for further guidance. In evaluating Pennsylvania's abortion law, the joint opinion relies extensively on the factual findings of the District Court, and repeatedly qualifies its conclusions by noting that they are contingent upon the record developed in these cases. Thus, the joint opinion would uphold the 24-hour waiting period contained in the Pennsylvania statute's informed consent provision, 18 Pa. Cons. Stat. § 3205 (1990), because "the record evidence shows that in the vast majority of cases, a 24-hour delay does not create any appreciable health risk," ante, at 885. The three Justices therefore conclude that "on the record before us, . . . we are not convinced that the 24-hour waiting period constitutes an undue burden." Ante, at 887. The requirement that a doctor provide the information pertinent to informed consent would also be upheld because "there is no evidence on this record that [this requirement] would amount in practical terms to a substantial obstacle to a woman seeking an abortion." Ante, at 884. Similarly, the joint opinion would uphold the reporting requirements of the Act, §§ 3207, 3214, because "there is no . . . showing on the record before us" that these requirements constitute a "substantial obstacle" *991 to abortion decisions. Ante, at 901. But at the same time the opinion pointedly observes that these reporting requirements may increase the costs of abortions and that "at some point [that fact] could become a substantial obstacle." Ibid. Most significantly, the joint opinion's conclusion that the spousal notice requirement of the Act, see § 3209, imposes an "undue burden" is based in large measure on the District Court's "detailed findings of fact," which the joint opinion sets out at great length, ante, at 888-891.

I do not, of course, have any objection to the notion that, in applying legal principles, one should rely only upon the facts that are contained in the record or that are properly subject to judicial notice.6 But what is remarkable about the joint opinion's fact-intensive analysis is that it does not result in any measurable clarification of the "undue burden" standard. Rather, the approach of the joint opinion is, for the most part, simply to highlight certain facts in the record that apparently strike the three Justices as particularly significant in establishing (or refuting) the existence of an undue burden; after describing these facts, the opinion then simply announces that the provision either does or does not impose a "substantial obstacle" or an "undue burden." See, e. g., ante, at 880, 884-885, 887, 893-894, 895, 901. We do not know whether the same conclusions could have been reached on a different record, or in what respects the record would have had to differ before an opposite conclusion would have been *992 appropriate. The inherently standard less nature of this inquiry invites the district judge to give effect to his personal preferences about abortion. By finding and relying upon the right facts, he can invalidate, it would seem, almost any abortion restriction that strikes him as "undue"—subject, of course, to the possibility of being reversed by a court of appeals or Supreme Court that is as unconstrained in reviewing his decision as he was in making it.

To the extent I can discern any meaningful content in the "undue burden" standard as applied in the joint opinion, it appears to be that a State may not regulate abortion in such a way as to reduce significantly its incidence. The joint opinion repeatedly emphasizes that an important factor in the "undue burden" analysis is whether the regulation "prevent[s] a significant number of women from obtaining an abortion," ante, at 893; whether a "significant number of women . . . are likely to be deterred from procuring an abortion," ante, at 894; and whether the regulation often "deters" women from seeking abortions, ante, at 897. We are not told, however, what forms of "deterrence" are impermissible or what degree of success in deterrence is too much to be tolerated. If, for example, a State required a woman to read a pamphlet describing, with illustrations, the facts of fetal development before she could obtain an abortion, the effect of such legislation might be to "deter" a "significant number of women" from procuring abortions, thereby seemingly allowing a district judge to invalidate it as an undue burden. Thus, despite flowery rhetoric about the State's "substantial" and "profound" interest in "potential human life," and criticism of Roe for undervaluing that interest, the joint opinion permits the State to pursue that interest only so long as it is not too successful. As Justice Blackmun recognizes (with evident hope), ante, at 926, the "undue burden" standard may ultimately require the invalidation of each provision upheld today if it can be shown, on a better record, that the State is too effectively "express[ing] a preference *993 for childbirth over abortion," ante, at 883. Reason finds no refuge in this jurisprudence of confusion.

"While we appreciate the weight of the arguments . . that Roe should be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis." Ante,at 853.

The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the "central holding." It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throwaway-the-rest version. I wonder whether, as applied to Marbury v. Madison, 1 Cranch 137 (1803), for example, the new version of stare decisis would be satisfied if we allowed courts to review the constitutionality of only those statutes that (like the one in Marbury) pertain to the jurisdiction of the courts.

I am certainly not in a good position to dispute that the Court has saved the "central holding" of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the "undue burden" test means. I must confess, however, that I have always thought, and I think a lot of other people have always thought, that the arbitrary trimester framework, which the Court today discards, was quite as central to Roeas the arbitrary viability test, which the Court today retains. It seems particularly ungrateful to carve the trimester framework out of the core of Roe, since its very rigidity (in sharp contrast to the utter indeterminability of the "undue burden" test) is probably the only reason the Court is able to say, in urging stare decisis, that Roe"has in no sense proven `unworkable,' " ante, at 855. I suppose the *994 Court is entitled to call a "central holding" whatever it wants to call a "central holding"—which is, come to think of it, perhaps one of the difficulties with this modified version of stare decisis. I thought I might note, however, that the following portions of Roe have not been saved:

• Under Roe, requiring that a woman seeking an abortion be provided truthful information about abortion before giving informed written consent is unconstitutional, if the information is designed to influence her choice. Thornburgh,476 U. S., at 759-765; Akron I, 462 U. S., at 442-445. Under the joint opinion's "undue burden" regime (as applied today, at least) such a requirement is constitutional. Ante, at 881-885.

• Under Roe, requiring that information be provided by a doctor, rather than by nonphysician counselors, is unconstitutional. Akron I, supra, at 446-449. Under the "undue burden" regime (as applied today, at least) it is not. Ante, at 884-885.

• Under Roe, requiring a 24-hour waiting period between the time the woman gives her informed consent and the time of the abortion is unconstitutional. Akron I, supra, at 449-451. Under the "undue burden" regime (as applied today, at least) it is not. Ante, at 885-887.

• Under Roe, requiring detailed reports that include demographic data about each woman who seeks an abortion and various information about each abortion is unconstitutional. Thornburgh, supra, at 765-768. Under the "undue burden" regime (as applied today, at least) it generally is not. Ante, at 900-901.

"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe . . . , its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a *995 national controversy to end their national division by accepting a common mandate rooted in the Constitution." Ante, at 866-867.

The Court's description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

Roe `s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. ("If the Constitution guarantees abortion, how can it be bad?"—not an accurate line of thought, but a natural one.) Many favor all of those developments, and it is not for me to say that they are wrong. But to portray Roe as the states manlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court *996 in particular, ever since. And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court's new majority decrees.

"[T]o overrule under fire . . . would subvert the Court's legitimacy . . . . ". . . To all those who will be . . . tested by follow-ing, the Court implicitly undertakes to remain stead- fast . . . . The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and . . . the commitment [is not] obsolete. . . .

"[The American people's] belief in themselves as . . . a people [who aspire to live according to the rule of law] is not readily separable from their under- standing of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals." Ante, at 867-868.

The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges— leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"—with the somewhat more modest role envisioned for these lawyers by the Founders.

"The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment . . . ."

The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982). Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no *997 shadow of change or hint of alteration ("There is a limit to the amount of error that can plausibly be imputed to prior Courts," ante, at 866), with the more democratic views of a more humble man:

"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).

It is particularly difficult, in the circumstances of the present decision, to sit still for the Court's lengthy lecture upon the virtues of "constancy," ante, at 868, of "remain[ing] steadfast," ibid., and adhering to "principle," ante, passim. Among the five Justices who purportedly adhere to Roe, at most three agree upon the principle that constitutes adherence (the joint opinion's "undue burden" standard)—and that principle is inconsistent with Roe. See 410 U. S., at 154-156.7 To make matters worse, two of the three, in order thus to remain steadfast, had to abandon previously stated positions. See n. 4, supra; see supra, at 988-990. It is beyond me how the Court expects these accommodations to be accepted "as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make." Ante, at 865-866. The only principle the Court "adheres" *998 to, it seems to me, is the principle that the Court must be seen as standing by Roe. That is not a principle of law (which is what I thought the Court was talking about), but a principle of Realpolitik—and a wrong one at that.

I cannot agree with, indeed I am appalled by, the Court's suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced— against overruling, no less—by the substantial and continuing public opposition the decision has generated. The Court's judgment that any other course would "subvert the Court's legitimacy" must be another consequence of reading the error-filled history book that described the deeply divided country brought together by Roe. In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, 19 How. 393 (1857), an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), which produced the famous "switch in time" from the Court's erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal. (Both Dred Scott and one line of the cases resisting the New Deal rested upon the concept of "substantive due process" that the Court praises and employs today. Indeed, Dred Scott was "very possibly the first application of substantive due process in the Supreme Court, the original precedent for Lochner v. New York and Roe v. Wade. " D. Currie, The Constitution in the Supreme Court 271 (1985) (footnotes omitted).)

But whether it would "subvert the Court's legitimacy" or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution *999 has an evolving meaning, see ante, at 848; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition—then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change—to show how little they intimidate us.

Of course, as The Chief Justice points out, we have been subjected to what the Court calls "`political pressure' " by both sides of this issue. Ante, at 963. Maybe today's decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception—a job not for lawyers but for political campaign managers—the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.

In truth, I am as distressed as the Court is—and expressed my distress several years ago, see Webster, 492 U. S., at 535—about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is,that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account *1000 their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment," ante, at 849, which turns out to be nothing but philosophical predilection and moral intuition. All manner of "liberties," the Court tells us, inhere in the Constitution and are enforceable by this Court—not just those mentioned in the text or established in the traditions of our society. Ante, at 847-849. Why even the Ninth Amendment—which says only that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"—is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted-at "rights," definable and enforceable by us, through "reasoned judgment." Ante, at 848-849.

What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here—reading text and discerning our society's traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U. S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value *1001 judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. Justice Blackmun not only regards this prospect with equanimity, he solicits it. Ante, at 943.

* * *

There is a poignant aspect to today's opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. "It is the dimension" of authority, they say, to "cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution." Ante, at 867.

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There *1002 seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation—burning on his mind. I expect that two years earlier he, too, had thought himself "call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution."

It is no more realistic for us in this litigation, than it was for him in that, to think that an issue of the sort they both involved—an issue involving life and death, freedom and subjugation—can be "speedily and finally settled" by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

1

 The Court's suggestion, ante, at 847-848, that adherence to tradition would require us to uphold laws against interracial marriage is entirely wrong. Any tradition in that case was contradicted by a text—an Equal Protection Clause that explicitly establishes racial equality as a constitutional value. See Loving v. Virginia, 388 U. S. 1, 9 (1967) ("In the case at bar, . . . we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race"); see also id., at 13 (Stewart, J., concurring in judgment). The enterprise launched in Roe v. Wade, 410 U. S. 113 (1973), by contrast, sought to establish —in the teeth of a clear, contrary tradition—a value found nowhere in the constitutional text.

There is, of course, no comparable tradition barring recognition of a "liberty interest" in carrying one's child to term free from state efforts to kill it. For that reason, it does not follow that the Constitution does not protect childbirth simply because it does not protect abortion. The Court's contention, ante, at 859, that the only way to protect childbirth is to protect abortion shows the utter bankruptcy of constitutional analysis deprived of tradition as a validating factor.It drives one to say that the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death.

2

 Justice Blackmun's parade of adjectives is similarly empty: Abortion is among "`the most intimate and personal choices,' "ante, at 923; it is a matter "central to personal dignity and autonomy," ibid.; and it involves "personal decisions that profoundly affect bodily integrity,identity,and destiny," ante, at 927.Justice Stevens is not much less conclusory: The decision to choose abortion is a matter of "the highest privacy and the most personal nature," ante, at 915; it involves a "`difficult choice having serious and personal consequences of major importance to [a woman's] future,' " ante, at 916; the authority to make this "traumatic and yet empowering decisio[n]" is "an element of basic human dignity," ibid.; and it is "nothing less than a matter of conscience," ibid.

3

 The joint opinion is clearly wrong in asserting, ante, at 874, that "the Court's early abortion cases adhered to" the "undue burden" standard. The passing use of that phrase in Justice Blackmun's opinion for the Court in Bellotti v. Baird, 428 U. S. 132, 147 (1976) (Bellotti I), was not by way of setting forth the standard of unconstitutionality, as Justice O'Connor's later opinions did, but by way of expressing the conclusion of unconstitutionality. Justice Powell for a time appeared to employ a variant of "undue burden" analysis in several non majority opinions, see, e. g., Bellotti v. Baird, 443 U. S. 622, 647 (1979) (Bellotti II); Carey v. Population Services International, 431 U. S. 678, 705 (1977) (opinion concurring in part and concurring in judgment), but he too ultimately rejected that standard in his opinion for the Court in Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 420, n. 1 (1983) (Akron I) . The joint opinion's reliance on Maher v. Roe, 432 U. S. 464, 473 (1977), and Harris v. McRae, 448 U. S. 297, 314 (1980), is entirely misplaced, since those cases did not involve regulation of abortion, but mere refusal to fund it. In any event, Justice O'Connor's earlier formulations have apparently now proved unsatisfactory to the three Justices, who—in the name of stare decisis no less—today find it necessary to devise an entirely new version of "undue burden" analysis. See ante, at 877-879.

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 the undue burden test, amounts to adopting the undue burden test as the exclusive standard. The Court's citation of Hodgson as reflecting Justice Kennedy's and Justice O'Connor's "shared premises," ante, at 878, is similarly inexplicable, since the word "undue" was never even used in the former's opinion in that case.I joined Justice Kennedy's opinions in both Hodgson and Akron II; I should be grateful, I suppose, that the joint opinion does not claim that I, too, have adopted the undue burden test.

5

 Of course Justice O'Connor was correct in her former view. The arbitrariness of the viability line is confirmed by the Court's inability to offer any justification for it beyond the conclusory assertion that it is only at that point that the unborn child's life "can in reason and all fairness" be thought to override the interests of the mother. Ante, at 870. Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.

6

 The joint opinion is not entirely faithful to this principle, however. In approving the District Court's factual findings with respect to the spousal notice provision, it relies extensively on nonrecord materials, and in reliance upon them adds a number of factual conclusions of its own. Ante, at 891-893. Because this additional factfinding pertains to matters that surely are "subject to reasonable dispute," Fed. Rule Evid. 201(b), the joint opinion must be operating on the premise that these are "legislative" rather than "adjudicative" facts, see Rule 201(a). But if a court can find an undue burden simply by selectively string-citing the right social science articles, I do not see the point of emphasizing or requiring "detailed factual findings" in the District Court.

7

 Justice Blackmun's effort to preserve as much of Roe as possible leads him to read the joint opinion as more "constan[t]" and "steadfast" than can be believed. He contends that the joint opinion's "undue burden" standard requires the application of strict scrutiny to "all non-de-minimis " abortion regulations, ante, at 926, but that could only be true if a "substantial obstacle," ante, at 877 (joint opinion), were the same thing as a non-de-minimis obstacle—which it plainly is not.