Thornburgh v. American College of Obstetricians and Gynecologists
Decided on June 11, 1986; 476 US 747


A. Issues Discussed: Privacy, Abortion

B. Legal Question Presented:

Does the Pennsylvania Abortion Control Act of 1982 violate the Constitution?


A. Background:

"In 1981, abortion legislation was proposed in the Pennsylvania House as an amendment to a pending Senate bill to outlaw 'tough-guy competitions.' The suggested amendment, aimed at limiting abortions, was patterned after a model statute developed by a Chicago-based, nonprofit anti-abortion organization. The bill underwent further change in the legislative process but, when passed, was vetoed by the Governor. Finally, the 1982 Act was formulated, enacted, and approved.

After the passage of the Act, but before its effective date, the present litigation was instituted in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs, who are the appellees here, were the American College of Obstetricians and Gynecologists... Alleging that the Act violated the United States Constitution, the plaintiffs, pursuant to 42 U.S.C. 1983, sought declaratory and injunctive relief. The defendants named in the complaint were the Governor of the Commonwealth, other Commonwealth officials, and the District Attorney for Montgomery County, Pa...

Relying substantially on the opinions of the respective Courts of Appeals in Akron Center for Reproductive Health, Inc. v. City of Akron... and in Planned Parenthood Assn. of Kansas City v. Ashcroft... the District Court concluded that, with one exception, the plaintiffs had failed to establish a likelihood of success on the merits and thus were not entitled to preliminary injunctive relief [preventing the law from taking effect].

Appellees appealed from the denial of the preliminary injunction, and appellants cross-appealed with respect to the single statutory provision [the one exception mentioned above] as to which the District Court had allowed relief. The Third Circuit then granted appellees' motion to enjoin enforcement of the entire Act pending appeal. [T]he court withheld judgment pending the anticipated decisions by this Court in Akron... Ashcroft... and Simopoulos v. Commonwealth, all of which had been accepted for review here... Those three cases were decided by this Court on June 15, 1983. After reargument in light of those decisions, the Court of Appeals... ruled that various provisions of the Act were unconstitutional..."

On appeal the US Supreme Court affirmed the judgment of the US Third Circuit Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging affirmance were filed for the Attorney General of New York by Robert Abrams, Attorney General, pro se, Robert Hermann, Solicitor General, Rosemarie Rhodes, Assistant Attorney General, and Lawrence S. Kahn, Sanford M. Cohen, and Martha J. Olson, Assistant Attorneys General; for the American Civil Liberties Union et al. by Nan D. Hunter, Janet Benshoof, and Suzanne M. Lynn; for the American Medical Association et al. by Benjamin W. Heineman, Jr., Carter G. Phillips, Newton N. Minow, Jack R. Bierig, Stephan E. Lawton, Joel I. Klein, Joseph A. Keyes, Jr., and Ann E. Allen; for the Center for Constitutional Rights et al. by Anne E. Simon, Nadine Taub, Rhonda Copelon, and Judith Levin; for the National Abortion Federation by David I. Shapiro, Sidney Dickstein, Kenneth M. Simon, and Amy G. Applegate; for the National Abortion Rights Action League et al. by Lynn I. Miller; for the National Family Planning and Reproductive Health Association, Inc., by Robert T. Crothers; for the National Organization for Women et al. by Diane E. Thompson; and for the Planned Parenthood Federation of America, Inc., et al. by Dara Klassel and Eve W. Paul.

Kathryn Kolbert argued the cause for appellees. With her on the brief was Thomas E. Zemaitis.

Briefs of amici curiae urging reversal filed for the United States by Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Assistant Attorney General Kuhl, John F. Cordes, and John M. Rogers; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the United States Catholic Conference by Wilfred R. Caron and Mark E. Chopko; for Senator Gordon J. Humphrey et al. by Robert A. Destro and Basile J. Uddo; for Watson D. Bowes, Jr., et al. by Steven Frederick McDowell; and for John D. Lane et al. by John E. McKeever.

Andrew S. Gordon, Senior Deputy Attorney General of Pennsylvania, argued the cause for appellants. With him on the briefs were LeRoy S. Zimmerman, Attorney General, and Allen C. Warshaw, Chief Deputy Attorney General.


"In the years since this Court's decision in Roe, States and municipalities have adopted a number of measures seemingly designed to prevent a woman, with the advice of her physician, from exercising her freedom of choice.... But the constitutional principles that led this Court to its decisions in 1973 still provide the compelling reason for recognizing the constitutional dimensions of a woman's right to decide whether to end her pregnancy. '[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.' Brown v. Board of Education. The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. Appellants claim that the statutory provisions before us today further legitimate compelling interests of the Commonwealth. Close analysis of those provisions, however, shows that they wholly subordinate constitutional privacy interests and concerns with maternal health in an effort to deter a woman from making a decision that, with her physician, is hers to make....

Constitutional rights do not always have easily ascertainable boundaries, and controversy over the meaning of our Nation's most majestic guarantees frequently has been turbulent. As judges, however, we are sworn to uphold the law even when its content gives rise to bitter dispute. We recognized at the very beginning of our opinion in Roe that abortion raises moral and spiritual questions over which honorable persons can disagree sincerely and profoundly. But those disagreements did not then and do not now relieve us of our duty to apply the Constitution faithfully.

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. That promise extends to women as well as to men. Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision - with the guidance of her physician and within the limits specified in Roe - whether to end her pregnancy. A woman's right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all."

The US Supreme Court affirmed the judgment of the US Third Circuit Court of Appeals.

Justice Vote: 5 Pro vs. 4 Con

  • Blackmun, H. Pro (Wrote majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Powell, L. Pro (Joined majority opinion)
  • Stevens, J.P. Pro (Wrote concurring opinion)
  • Burger, W. Con (Wrote dissenting opinion)
  • White, B. Con (Wrote dissenting opinion)
  • O'Connor, S.D. Con (Wrote dissenting opinion)
  • Rehnquist, W. Con (Joined dissenting opinion)

The ACLU, as amicus curiae, urged affirmance of the U.S. Third Circuit Court of Appeal's judgment; the Supreme Court affirmed in a 5-4 vote, giving the ACLU an apparent win.