This Day in History: Akron v. Akron Center for Reproductive Health

By Dave Andrusko

Perusing through old issues of National Right to Life News, I [re]discovered it was on June 15, 1983, that the Supreme Court gutted several very commonsense limitations on abortion in the case known as Akron v. Akron Center for Reproductive Health.

In that 6-3 decision, Justices Burger, Brennan, Marshall, Blackmun, Powell, and Stevens continued the Supreme Court’s hostility to even minimally protective state legislation, an enmity which had not waned in the decade since the 1973 Roe decision.

The Court majority struck down a series of abortion requirements, including that second and third trimester abortions be performed in a hospital; judicial consent of one parent when a minor wishes to abort; and a woman’s right to know provision.

The Court’s unyielding resistance would not soften except in the most marginal way until the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision. Pro-lifers remember that case for what came to be known as the infamous “mystery of life passage.”

It read, “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.” But what does that mean? Whatever an individual justice decides it means. It’s a vessel into which he or she can pour any meaning.

But for all that Casey signaled the end of the rickety trimester scheme of Roe and the reversal of some of its previous holdings such as on informed consent. From the absolutist abortion on demand perspective, it’s been downhill ever since.

Back to Akron for a minute. For younger folks, that was the case which persuaded pro-lifers Justice Sandra Day O’Connor might be open to reason.

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O’Connor’s 1983 dissent in Akron was not only carefully reasoned and thoughtfully written, she went on to take issue with Roe v. Wade itself. After explaining how Roe’s framework was inherently unstable, O’Connor wrote that the Supreme Court “adheres to the Roe framework” because the doctrine of stare decisis (given great weight to precedent) “demands respect in a society governed by the rule of law” (quoting a prior Supreme Court decision).

But O’Connor (quoting another prior case) also pointed out “this Court’s considered practice [is] not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases.” In a word, stare decisis–the idea that the Court does not easily turn away from previous case law–was important, but not always definitive.

Predicting that the date of fetal viability would move ever closer toward the beginning of a pregnancy, she proclaimed Roe’s analytic framework to be “clearly on a collision course with itself.” Abortion restrictions should be upheld, O’Connor wrote, as long as they did not present an ‘undue burden’ … .”

High hopes, all of which were dashed, decision by decision, over the next few years. By the 2000 Carhart decision, O’Connor had lapsed so far she constituted the swing vote in a decision that overturned Nebraska’s ban on partial-birth abortions.

When she retired, Justice O’Connor was replaced by Justice Samuel Alito, a huge breakthrough for life and the last “constitutionalist” to be appointed until Judge Neil Gorsuch became Justice Neil Gorsuch.