STAPLETON, Circuit Judge:

Five abortion clinics and one physician (the "clinics") raise a facial constitutional challenge to certain 1988 and 1989 amendments to the Pennsylvania Abortion Control Act of 1982 (the "Act"). See 18 Pa. Cons.Stat.Ann. §§ 3201-3220 (1983 & Supp.1991). The United States District Court for the Eastern District of Pennsylvania held that §§ 3205 (informed consent), 3206 (parental consent), 3209 (spousal notice), 3214(a) (reporting requirements), and 3207(b) and 3214(f) (public disclosure of clinics' reports) violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Commonwealth defendants (the "Commonwealth") appeal. Because we find unconstitutional only § 3209, which requires notice to a spouse of a planned abortion, we will affirm in part and reverse in part.

As Justice O'Connor cogently observed in an equal protection case alleging racial discrimination, a "dispute regarding the appropriate standard of review may strike some as a lawyers' quibble over words, but it is not. The standard of review establishes when the Court and Constitution allow the Government to employ racial classifications. A lower standard signals that the Government may resort to racial distinctions more readily." Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 3033, 111 L.Ed.2d 445 (1990) (O'Connor, J., dissenting). Similarly, the standard of review used for abortion legislation establishes the degree to which the government may regulate abortion. Because of its importance to the resolution of the issues before us, we discuss at some length our reasons for selecting the standard we will subsequently use in analyzing the challenged provisions of the Pennsylvania Act. We will first examine the different standards of review that have been suggested by various Justices as appropriate for reviewing abortion regulations. Then we will consider the rules of stare decisis that must be employed in determining which of these standards we must apply in this case.

FN1. The Due Process Clause of the Fourteenth Amendment states: "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. xiv. Though the Due Process Clause, read literally, is a guarantee only of fair procedures when the government deprives a person of life, liberty, or property, the Supreme Court has held under the "substantive due process" doctrine that there is more to the Due Process Clause than this guarantee of procedural fairness.

Government interference with personal rights within the scope of the life, liberty, or property umbrella of the Due Process Clauses must be justified by a legitimate state interest; government interference with a "fundamental right" may be justified only by the most important of state interests.


FN2. The Roe dissenters argued that only those rights "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition" are fundamental rights and that the right to an abortion does not meet that standard. See Roe, 410 U.S. at 174, 93 S.Ct. at 737 (Rehnquist, J., dissenting); Thornburgh, 476 U.S. at 793, 106 S.Ct. at 2196 (White, J., dissenting). The Roe majority stated that there is a fundamental right to privacy. This right includes "the right of the individual, married or single, to be free from unwarranted government intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972).

A statute is struck down under rational basis review only if it is not rationally related to a legitimate state interest. The test is a deferential one, and state legislation is rarely invalidated as not rationally related to a legitimate state interest. See Williamson v. Lee Optical, 348 U.S. 483, 487, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955); Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963).

In Roe, Justice White and then-Justice Rehnquist dissented and, applying rational basis review, would have upheld Texas' criminal prohibition of abortion. In dissent in Thornburgh, Justice White, joined by Justice Rehnquist, stated his reasoning:

State action impinging on individual interests need only be rational to survive scrutiny under the Due Process Clause, and the determination of rationality is to be made with a heavy dose of deference to the policy choices of the legislature. Only "fundamental" rights are entitled to the added protection provided by strict judicial scrutiny of legislation that impinges upon them. I can certainly agree with the proposition--which I deem indisputable--that a woman's ability to choose an abortion is a species of "liberty" that is subject to the general protections of the Due Process Clause. I cannot agree, however, that this liberty is so "fundamental" that restrictions upon it call into play anything more than the most minimal judicial scrutiny.

Thornburgh, 476 U.S. at 789-90, 106 S.Ct. at 2193-94 (White, J., dissenting) (citations omitted). In Webster, the plurality of Chief Justice Rehnquist, Justice White, and Justice Kennedy asked whether the challenged regulation "permissibly furthers the State's interest in protecting potential human life," Webster, 492 U.S. at 519-20, 109 S.Ct. at 3057-58, a standard that, at least for present purposes, we equate with rational basis review. See also Hodgson, 110 S.Ct. at 2969 (Kennedy, J., concurring and dissenting) (two-parent notification requirement represents "permissible, reasoned" attempt to further parents' rights).

Justice O'Connor has taken the middle ground between these two positions. She has consistently stated that she would subject an abortion regulation to strict scrutiny review only if the regulation "unduly burdens" a woman's freedom to decide whether to terminate her pregnancy; otherwise, *690 she would employ rational basis review. See Akron, 462 U.S. at 453, 103 S.Ct. at 2504 (O'Connor, J., dissenting) (citation omitted) ("If the particular regulation does not 'unduly burden' the fundamental right, then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose."); Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting) (repeating undue burden standard and citing dissent from Akron ); Webster, 492 U.S. at 530, 109 S.Ct. at 3063 (O'Connor, J., concurring) (same); Hodgson, 110 S.Ct. at 2949-50 (O'Connor, J., concurring) (same).

Justice O'Connor has adopted the undue burden standard because of the "limited nature of the fundamental right that has been recognized in the abortion cases." Akron, 462 U.S. at 465 n. 10, 103 S.Ct. at 2511 n. 10 (O'Connor, J., dissenting). In support of her position, she has referenced both previous abortion cases and other fundamental rights cases. [FN3]

FN3. In the abortion context, the pedigree of the undue burden standard can be traced to Justice Powell's opinion for the majority in Maher v. Roe, a government funding case:

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. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion.

Maher v. Roe, 432 U.S. 464, 473-74, 97 S.Ct. 2376, 2382-83, 53 L.Ed.2d 484 (1977) (emphasis added). Chief Justice Burger added, "The Court's holdings in [Roe and Doe v. Bolton ] simply require that a State not create an absolute barrier to a woman's decision to have an abortion."

Id. 432 U.S. at 481, 97 S.Ct. at 2386 (Burger, C.J., concurring) (emphasis added). In a later funding case, Justice Stewart stated for the Court that Roe protects the woman from "unduly burdensome interference," such as the "severe criminal sanctions" in Roe or the "absolute requirement of spousal consent" in Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). Harris v. McRae, 448 U.S. 297, 314, 100 S.Ct. 2671, 2686, 65 L.Ed.2d 784 (1980). Though Maher and Harris involved funding and thus presented a somewhat different analytical problem than general regulation of abortion, Justice O'Connor has interpreted those cases as providing the correct standard of review for all abortion regulations. Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting) ("These principles for evaluating state regulation of abortion were not newly minted in my dissenting opinion in Akron. "). Justice O'Connor has also pointed out that the results reached in Danforth and Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) ("Bellotti II "), the most important non-funding cases between Roe and Akron, are consistent with the undue burden approach. See Akron, 462 U.S. at 461-62 n. 8, 464, 103 S.Ct. at 2508-10 n. 8, 2511 (O'Connor, J., dissenting). Beyond the abortion context, Justice O'Connor has pointed to other fundamental rights cases where the Court has required a significant or substantial infringement on the fundamental right in order to trigger strict scrutiny. See, e.g., Carey v. Population Services International, 431 U.S. 678, 689, 97 S.Ct. 2010, 2018, 52 L.Ed.2d 675 (1977) (addressing state ban on nonmedical contraceptives, Court stated that strict scrutiny is appropriate only when law imposes "significant burden" on protected right); Zablocki v. Redhail, 434 U.S. 374, 387, 98 S.Ct. 673, 681, 54 L.Ed.2d 618 (1978) (heightened scrutiny is appropriate when law interferes "directly and substantially with the right to marry" and "citizens suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.").

FN4. As we read Justice O'Connor's explications of the concept of "undue burden," they are all consistent with the view that the right to elect not to carry to term is a constitutional right of each individual woman. Where it is clear that a governmental regulation will restrict the ability of some women to choose an abortion, we believe the issue of whether there is an undue burden turns on the degree of restriction that the affected women will experience. Accordingly, whether the adversely affected group is but a small fraction of the universe of pregnant women desiring an abortion seems to us irrelevant to that issue.

FN5. For almost every constitutional provision in the Bill of Rights and the Fourteenth Amendment, the Supreme Court has adopted a standard or test, usually known afterwards by the name of the case adopting it, to flesh out the constitutional language and guide future resolution of cases that arise under those provisions. A brief and inexhaustive list includes: Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), for the Establishment Clause; New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), for libel; Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), for Free Exercise claims; Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), for threatening speech; United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), for First Amendment expressive conduct; National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), for drug testing; City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), for state affirmative action; Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) for federal affirmative action; Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), for procedural due process; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and now Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), for double jeopardy.

FN6. The lower courts in constitutional matters universally follow both the Supreme Court's choice of legal standard and the specific results the Court has reached by applying that legal standard. See, e.g., Reuber v. Food Chemical News, Inc., 925 F.2d 703, 714-18 (4th Cir.1991) (applying New York Times actual malice standard in defamation case); Vandiver v. Hardin County Board of Education, 925 F.2d 927, 931-34 (6th Cir.1991) (applying Smith Free Exercise Clause standard); United States v. Pungitore, 910 F.2d 1084, 1109-1112 (3d Cir.1990) (applying Grady v. Corbin double jeopardy test); United States v. Cruz, 910 F.2d 1072, 1078-79 (3d Cir.1990) (applying Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166, test for adequacy of Miranda warnings); United States v. American Investors of Pittsburgh, Inc., 879 F.2d 1087, 1106-07 (3d Cir.1989) (applying Leon standard for defective search warrants).

Like lower courts, the Supreme Court applies principles of stare decisis and recognizes an obligation to respect both the standard announced and the result reached in its prior cases. Unlike lower courts, the Supreme Court is free to change the standard or result from one of its earlier cases when it finds it to be "unsound in principle [or] unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546, 105 S.Ct. 1005, 1015, 83 L.Ed.2d 1016 (1985). Accordingly, when a majority of the Justices announce in the course of deciding a case that they are substituting a new standard or result for that used in a prior case, the substitution is effected, and the lower courts are thereafter bound to follow the new standard or result. See, e.g., Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990); Vandiver v. Hardin County Board of Education, 925 F.2d 927 (6th Cir.1991) (applying new Smith test).

Occasionally, the Supreme Court's decision in a case reveals that a standard established in an earlier case no longer commands the allegiance of a majority of the Justices, but also reveals that no single substitute is endorsed by that majority of the Justices. Thereafter, the lower courts must determine whether to apply the old standard or, if not, what standard to apply. Fortunately, the Supreme Court has instructed the lower courts on how to resolve these issues.

Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), was a criminal prosecution under a statute barring the interstate transportation of obscene materials. The Court had previously established that the statute was to be interpreted in accordance with the definition of obscenity fashioned by the Supreme Court under the Free Speech Clause of the First Amendment. In response to a contention based on the Ex Post Facto Clause, the Supreme Court in Marks had to determine what the law of the land regarding obscenity had been at the time of the defendant's alleged offense. It therefore reviewed its more recent obscenity jurisprudence. In *693 Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957), the Court had declared the test to be "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." Some years later in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), a plurality opinion joined only by three Justices announced that a work is not obscene unless "three elements ... coalesce:"

[I]t must be established that (a) the dominant theme of the material taken as a whole appears to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

383 U.S. at 418, 86 S.Ct. at 977. The plurality opinion in Memoirs decided that Fanny Hill was not obscene when judged by this standard and, accordingly, that the defendants' conviction had to be overturned. Three additional Justices concurred in this result but did so utilizing different rules of law: two stated that the First Amendment shields all speech including obscenity; one stated that the First Amendment protects all but "hard core pornography." Three Justices dissented.

The Marks Court was required to determine whether the legal standard announced in Roth had remained the law of the land after Memoirs or whether it had been superseded by a new standard in Memoirs. Despite the fact that no new legal standard had commanded the allegiance of a majority of the Justices in Memoirs, the Marks Court held that Roth 's standard did not survive Memoirs because a majority of Justices in Memoirs rejected the Roth standard. Marks thus stands for a very important proposition: a legal standard endorsed by the Court ceases to be the law of the land when a majority of the Court in a subsequent case declines to apply it, even if that majority is composed of Justices who disagree on what the proper standard should be.

Having decided that the Roth standard had ceased to control, the Marks Court also determined what standard had taken its place. The Court concluded that the Memoirs plurality opinion had become the law of the land. The court explained that "[w]hen 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.' " Marks, 430 U.S. at 193, 97 S.Ct. at 993 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). The Justices in the plurality in Memoirs were those who concurred on the narrowest grounds.

Thus, Marks stands for a second important proposition: the controlling opinion in a splintered decision is that of the Justice or Justices who concur on the "narrowest grounds." The principal objective of this Marks rule is to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent. This objective requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases and that this standard, when properly applied, produce results with which a majority of the Justices in the case articulating the standard would agree. In a run-of-the-mill case where a majority of the Justices endorse a single legal standard, see, e.g., Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), lower courts simply follow that standard. In splintered decisions such as Memoirs where no single rationale "enjoys the assent of five Justices," the situation becomes more complex, but the controlling principle is the same. Where a Justice or Justices concurring in the judgment in such a case articulates a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree, that standard is the law of the land. In a constitutional case where (1) there is a 5-4 decision or where there are only two opinions in the *694 majority and (2) the majority votes to uphold a law as constitutional, the "narrowest grounds" principle will identify as authoritative the standard articulated by a Justice or Justices that would uphold the fewest laws as constitutional. Conversely, in a constitutional case where (1) there is a 5-4 split or there are only two opinions in the majority and (2) the majority strikes down a law as unconstitutional, the authoritative standard will be that which would invalidate the fewest laws as unconstitutional. [FN7]

FN7. When six or more Justices join in the judgment and they issue three or more opinions, the situation is slightly more complex. In those cases, the idea is to locate the opinion of the Justice or Justices who concurred on the narrowest grounds necessary to secure a majority. In other words, a lower court should not follow an opinion that, though part of the majority in that case, was unnecessary to secure a five-Justice majority. Thus, if three Justices issue the broadest opinion, two Justices concur on narrower grounds, and one Justice concurs on still-narrower grounds, the two-Justice opinion is binding because that was the narrowest of the opinions necessary to secure a majority.

FN8. In rare cases, no common denominator exists beyond agreement on the result in that particular case. See United States v. Eckford, 910 F.2d 216 (5th Cir.1990) (finding no common denominator and thus no binding opinion in Baldasar v. United States, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980)); Schindler v. Clerk of Circuit Court, 715 F.2d 341 (7th Cir.1983) (same).

In sum, the effect of following the wrong opinion from a splintered decision is the same as affirmatively declaring that a Supreme Court majority opinion is not binding. By following the opinion that comports with the Marks principle, we respect the decision of a majority of the Court and thus fulfill our obligation to comply with decisions of the Supreme Court.

FN9. Four Justices dissented over the interpretation of the Missouri statute. The dissenters agreed, however, that the statute as interpreted by the majority survived strict scrutiny review. Thus, all nine members of the Court concluded that the statute as interpreted by the majority was constitutional, but for four different reasons. In any event, five Justices rejected strict scrutiny, and the narrowest opinion of those five Justices was that of Justice O'Connor.

It is clear to me that requiring the performance of examinations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be medically imprudent to do so, does not impose an undue burden on a woman's abortion decision. On this ground alone I would reject the suggestion that § 188.029 as interpreted is unconstitutional.

Webster, 492 U.S. at 530, 109 S.Ct. at 3063 (O'Connor, J., concurring) (emphasis added). [FN10]

FN10. Although Justice O'Connor's discussion in Webster did not end with her analysis under the undue burden standard, it did rely on and adhere to her undue burden approach for abortion regulations. Interpreting Justice O'Connor's opinion as agreeing with the Akron strict scrutiny standard for reviewing all abortion regulations would not only be inconsistent with that portion of her opinion that we have quoted in the text, but would also be plainly incompatible with her consistent approach in cases before and after Webster: that the undue burden approach is the proper analysis for review of abortion regulations.

We note that Justice O'Connor herself has subsequently interpreted her opinion in Webster as relying on the undue burden standard. In Hodgson, she again put forth the undue burden approach as the proper
standard for abortion cases. In doing so, she cited her opinion in Webster in support of her understanding that if a regulation does not unduly burden the fundamental right, "then our evaluation is limited to our determination that the regulation rationally relates to a legitimate state purpose." Hodgson, 110 S.Ct. at 2949-50 (O'Connor, J., concurring).

Moreover, in addition to Justice O'Connor, her colleague read her opinion as we do. Justice Scalia in concurrence in Webster interpreted Justice O'Connor's opinion to rely on the undue burden standard in upholding the viability testing provision. He stated: "Justice O'Connor would nevertheless uphold the law because 'it does not impose an undue burden on a woman's abortion decision.' " Webster, 492 U.S. at 536 n. *, 109 S.Ct. at 3066 n. * (Scalia, J., concurring).

To understand Justice O'Connor's further discussion in Webster, it is necessary to remember that the trimester framework establishes what types of abortion regulations meet the strict scrutiny standard. Under the trimester framework, the state's interest in maternal health is compelling only in the second and third trimesters, and the state's interest in the fetus is compelling only in the third trimester. The plurality in Webster found that the viability testing provision was in conflict with the trimester framework. But the plurality upheld the provision after discarding the trimester framework as "unsound in principle and unworkable in practice." Justice O'Connor stated that she continued to have problems with the trimester framework, but she saw no need in Webster to address the serious constitutional question raised by its reconsideration. In effect, Justice O'Connor's opinion, after stating why she believed the viability testing provision was constitutional, agreed with the dissent that the plurality was reaching out unnecessarily in addressing the trimester framework.

She gave two reasons why the viability testing provision did not implicate the trimester framework. First, under her approach, it did not cause an undue burden and therefore strict scrutiny and the trimester framework derived from it were simply not applicable. Second, even if the provision triggered strict scrutiny, thus implicating the trimester framework, the Court had always held--consistent with the trimester framework--that the state has a compelling interest in determining the critical point of viability. In sum, according to Justice O'Connor, the trimester framework was neither triggered by nor inconsistent with the viability testing provision.

For our purposes, the most important point about Justice O'Connor's opinion in Webster is the following: in arguing that strict scrutiny was not triggered and thus that the trimester framework should not have been reconsidered, Justice O'Connor in no way retreated from, and indeed she affirmatively relied on, her consistent view that a threshold undue burden determination is necessary before strict scrutiny is to be employed.

It has been my understanding in this area that "[i]f the particular regulation does not 'unduly burde[n]' the fundamental right, ... then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose." Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 453 [103 S.Ct. 2481, 2511, 76 L.Ed.2d 687] (1983) (O'Connor, J., dissenting); see also Webster v. Reproductive Health Services, 492 U.S. 490, 522-23, 109 S.Ct. 3040, 3059, 106 L.Ed.2d 410 (1989) (O'Connor, J., concurring in part and concurring in judgment).... I agree with Justice Stevens that Minnesota has offered no sufficient justification for its interference with the family's decisionmaking processes created by subdivision 2--two-parent notification.

Hodgson, 110 S.Ct. at 2949-50 (O'Connor, J., concurring). Three of the other four Justices in the majority applied strict scrutiny review without determining as a threshold matter whether the regulation caused an undue burden. Justice Stevens agreed that the statute was unconstitutional, noting that "[u]nder any analysis, the Minnesota statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests." Id. at 2937 (opinion of Stevens, J.). He concluded both that the state had no legitimate interest in assuring that a particular individual parent participate in the child's abortion decision and that requiring the minor to notify both parents did not further the state's interest in seeing that a minor's abortion decision be informed. Id. at 2937, 2945. The four dissenters would have applied rational basis review and upheld the provision.

Also in Hodgson, five Justices--Justice O'Connor, Chief Justice Rehnquist, and Justices White, Scalia, and Kennedy--held that a two-parent notification requirement with a judicial bypass option was constitutional. Justice O'Connor concluded that it did not cause an undue burden and passed rational basis review:
In a series of cases, this Court has explicitly approved judicial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion. In Danforth, the Court stated that the "primary constitutional deficiency lies in [the notification statute's] imposition of an absolute limitation on the minor's right to obtain an abortion...."

Subdivision 6 passes constitutional muster because the interference with the internal operation of the family required by subdivision 2 simply does not exist where the minor can avoid notifying one or both parents by use of the bypass procedure.

Hodgson, 110 S.Ct. at 2950-51 (O'Connor, J., concurring) (emphasis added) (citations omitted). The other four Justices in the majority on this issue in Hodgson found that the statute passed rational basis review without first deciding if it caused an undue burden. The dissenters would have used strict scrutiny and struck down the provision.

*697 Justice O'Connor thus concurred in Webster and on one issue in Hodgson by holding that an abortion regulation that imposes no undue burden on a woman's decision to have an abortion does not violate the Due Process Clause so long as it is rationally related to a legitimate state interest. While the views of the other Justices concurring in the judgment on those issues differed from those of Justice O'Connor, all of them would uphold as constitutional any regulation meeting that standard.
Moreover, Justice O'Connor concurred in the Court's judgment on the other issue in Hodgson on the ground that an abortion regulation that imposes an undue burden on the decision to abort violates the Due Process Clause if does not meet the strict scrutiny standard. Here also, the other Justices concurring in the judgment on this issue did not join her opinion, but they would strike down as unconstitutional any regulations struck down under the undue burden standard.

In these circumstances, we conclude that it would be inconsistent with the teachings of Marks for lower courts to apply the strict scrutiny test of Roe, Akron, and Thornburgh to all abortion regulations. We also conclude that only by applying the undue burden standard of review, that is, only by applying strict scrutiny review to regulations that impose an undue burden and rational basis review to those which do not, can we remain faithful to Marks. Only by following the rationale of Justice O'Connor's concurring opinions will the lower courts decide abortion regulation cases in a way consistent with the way the Court decided them in Webster and Hodgson.

Having concluded that the undue burden standard is binding on us, one issue of stare decisis remains: Are we required to follow results reached by the Supreme Court in cases prior to Webster and Hodgson even though we are not bound by the rationale which produced those results? In the instant case, this issue is relevant because the Supreme Court, engaging in strict scrutiny review in Akron and Thornburgh, struck down informed consent provisions almost identical to the provisions at issue here. If we were constrained to follow the results reached in Akron and Thornburgh, we would hold unconstitutional the informed consent provisions of the Pennsylvania Act. We are convinced, however, that such a course would be improper.

It would be anomalous if the results reached under a constitutional standard remained binding after the standard or test was repudiated. To take a variation [FN11] of a familiar constitutional story, suppose that the Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), had required that states no longer run segregated school systems by repudiating the Plessy separate but equal doctrine and stating that the Equal Protection Clause forbids invidious racial classifications by government. Although Brown of course involved schools, a lower court in the aftermath would apply that principle to all racial classifications by government, regardless of whether before Brown the Supreme Court had upheld racial classifications in the particular context at issue. Thus, if pre-Brown, the Court had stated that state-segregated public pools did not violate the Equal Protection Clause, a lower court faced with a challenge to state-segregated pools after the Brown decision would apply the new principle to pools rather than upholding the segregated pools on the basis of the result reached by the Supreme Court under the discarded standard.

FN11. We say variation because the Court in Brown actually seemed to rest its decision on the context--schools--rather than a blanket principle about the Equal Protection Clause. For our example here, we will assume that the latter had occurred.

FN12. While results reached under a discarded standard are no longer binding, that does not mean that the old results are necessarily wrong; it simply means that the fact patterns producing those results must be analyzed under the new standard. That is why, though we conclude that the strict scrutiny standard applied in Akron and Thornburgh is no longer governing and the results no longer binding, the provisions held unconstitutional there are not necessarily constitutional; we must instead analyze the provisions under the newly minted undue burden standard.

FN13. We are of course mindful that only the Supreme Court "may overrule one of its precedents." Thurston Motor Lines v. Jordan K. Rand Ltd., 460 U.S. 533, 535, 103 S.Ct. 1343, 1344, 75 L.Ed.2d 260 (1983); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). The Court rejected anticipatory overruling in Rodriguez. A lower court may not disregard a result reached under a controlling standard, even when that result is inconsistent with other results reached under the same standard. Similarly, a lower court may not reject a governing standard unless a majority of the Justices in a single case declines to apply it. Thus, while a regulation must constitute an undue burden to trigger strict scrutiny, the trimester framework is still binding when strict scrutiny is triggered. Although five sitting Justices of the Supreme Court have criticized or rejected the Roe trimester framework, they have not rejected it in a single case. Cf. Sojourner v. Roemer, 772 F.Supp. 930 (E.D.La.1991) (invalidating criminal prohibition on abortion).

An abortion regulation can infringe upon the abortion right in at least seven ways: (1) causing a delay before the abortion is performed; (2) raising the monetary cost of an abortion; (3) reducing the availability of an abortion by directly or indirectly causing a decrease in the number of legal abortion providers; (4) causing or forcing the woman to receive information she has not sought; (5) causing the woman to find the person or persons whom the state has required that she notify or obtain consent from; (6) causing the woman to endure any negative or hostile response from a person whom the state has required the woman to notify or obtain consent from; and (7) taking away the power to decide whether to have an abortion by giving another person, usually a parent or spouse, a veto power on the abortion decision. Almost all abortion regulations implicate the first three of these; informed consent requirements also involve the fourth; and notice and consent statutes also implicate the fifth, sixth, and seventh.

A review of the abortion case law, and Webster and Hodgson in particular, suggest that no undue burden is caused by abortion regulations that do not have a "severe" or "drastic" impact upon time, cost, or the number of legal providers of abortions. Webster, 492 U.S. at 529-30, 109 S.Ct. at 3062-63 (O'Connor, J., concurring); Thornburgh, 476 U.S. at 827-33, 106 S.Ct. at 2213-16 (O'Connor, J., dissenting); Akron, 462 U.S. at 464-67, 472-74, 103 S.Ct. at 2510-12, 2515-16 (O'Connor, J., dissenting). Similarly, the case law indicates that a state's requirement that abortion providers communicate information to a woman, which is typically in the form of an informed consent requirement, will not constitute an undue burden if the information that the abortion provider must give is relevant, accurate, and non-inflammatory. Thornburgh, 476 U.S. at 830-32, 106 S.Ct. at 2215-16 (O'Connor, J., dissenting). [FN14]

FN14. We have held that the undue burden standard adopted by Justice O'Connor in Webster and Hodgson is the binding standard. The definition of that standard--"absolute obstacle or severe limitation"--used by Justice O'Connor in those cases is binding, as is her application of that standard to the viability testing provision and two-parent notification provision. However, her application of that standard in past dissents--the results she would have reached in those cases--is not binding on us. Nonetheless, we will often refer to her application of the undue burden standard in past dissents as evidence (though not conclusive) of how the undue burden standard might apply here. As we stated earlier, lower courts cannot read the tea leaves in overruling precedent, but lower courts can do so with respect to open issues or new areas; and that, in effect, is what we confront here, since for most of the provisions involved in this case, the Court has never applied the undue burden standard.

*699 The primary manner in which an abortion regulation can constitute an undue burden, other than by banning some or all previability abortions, is by taking away the woman's unilateral power to decide whether to have a previability abortion. Thus, a regulation in which the state gives a veto power to the woman's husband or, for a minor woman, to a parent constitutes an undue burden. See Hodgson, 110 S.Ct. at 2949-50 (O'Connor, J., concurring); Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting); Bellotti II, 443 U.S. at 646-48, 99 S.Ct. at 3049-51; Danforth, 428 U.S. at 67-72, 96 S.Ct. at 2840-43. However, a parental consent or notice provision combined with an adequate judicial bypass procedure does not constitute an undue burden. See Hodgson, 110 S.Ct. at 2950-51 (O'Connor, J., concurring).

With this overall orientation, we turn now to the individual provisions of the Act. We may overrule the district court's factual findings based on the evidence before it only when clearly erroneous. We exercise plenary review, however, over the district court's determination of constitutionality and thus over whether the facts found regarding the effect of a particular statutory provision constitute an "undue burden." We also exercise plenary review over the question whether a provision passes strict scrutiny or rational basis review.

We first address an issue that would affect virtually all of our later analysis if not resolved at the outset. Section 3203 of the Act defines the term medical emergency. A medical emergency is:

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 termination 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.
18 Pa. Cons.Stat.Ann. § 3203 (1983 & Supp.1991). When a medical emergency exists, the Act permits doctors and women to forego a number of the Act's requirements, including the waiting period, parental consent, and spousal notice requirements. The district court declared the definition in § 3203 unconstitutionally narrow and struck down all provisions of the Act that contained this medical emergency exception; for certain provisions, this was only an alternative basis for the district court's holding of unconstitutionality.

The Supreme Court indicated in Roe and subsequent cases that the state's interest in the fetus is not sufficient to prevent a woman: (1) from having a previability abortion; or (2) from having an abortion at any point during the pregnancy, immediately if necessary, to prevent a serious threat to her life or health. In Roe, the Court stated that third trimester abortions may be banned except where "necessary to preserve the life or health of the mother." 410 U.S. at 164, 93 S.Ct. at 732 (emphasis added); see also Harris v. McRae, 448 U.S. 297, 316, 100 S.Ct. 2671, 2687, 65 L.Ed.2d 784 (1980) ("it could be argued that the freedom of a woman to decide whether to terminate her pregnancy for health reasons does in fact lie at the core of the constitutional liberty identified in [Roe ]."). From Roe and subsequent cases, it thus appears that any abortion regulation which might delay or prevent an abortion must contain a medical emergency exception.

The Commonwealth does not dispute that its abortion regulations would be constitutionally deficient if they did not contain an exception for those situations in which compliance would pose a serious risk to the life or health of the woman. The clinics acknowledge that the Act's medical emergency exception is intended to protect the life and health of the woman, but they seek to demonstrate that it is deficient by pointing to three conditions encountered by pregnant women with some frequency: preeclampsia, inevitable abortion, and prematurely *700 ruptured membrane. In the clinics' view, these conditions are not covered by the medical emergency exception because each "could pose a serious threat to a woman's health without immediately creating a serious risk of substantial and irreversible impairment to a major bodily function." Brief for Appellees at 16. The clinics insist that this renders the Commonwealth's regulations unconstitutional.

The Commonwealth does not challenge the assertion that its regulations would be unconstitutional if women having preeclampsia, inevitable abortion, or prematurely ruptured membrane were required to satisfy all of the requirements of the Act before having an abortion. Rather, the Commonwealth responds that preeclampsia, inevitable abortion, and prematurely ruptured membrane are "medical emergencies" as defined in the Act because "all of these conditions, if left untreated, could progress to such a point that death or substantial and irreversible impairment of a major bodily function will occur." Reply Brief for Appellants at 4 n. 2.

It is thus apparent that our initial issue for resolution is one of statutory interpretation and is governed by Pennsylvania law. There is no helpful Pennsylvania case law construing the medical emergency provision of the Act. There are, however, Pennsylvania cases indicating that statutes of the Commonwealth should be construed to sustain their constitutionality. See Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81, 87 (1988) ("Any doubts are to be resolved in favor of sustaining the legislation."); Hughes v. Commonwealth Dept. of Transportation, 514 Pa. 300, 523 A.2d 747, 750-51 (1987) ("We must presume that an Act of the legislature is intended to be constitutional and wherever a legislative act can be preserved from unconstitutionality it must be preserved."); see also Webster, 492 U.S. at 514, 109 S.Ct. at 3054 (statutes should be interpreted to avoid constitutional difficulty); Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988) (same). With this case law in mind, we turn to the symptoms and the risks of each of the conditions identified by the clinics.

Preeclampsia is a combination of symptoms related to an immunological disorder. When diagnosed as having preeclampsia, "the patient develops hypertension, she can have destruction of the liver, hemorrhage into the liver, she can have destruction of the kidneys and she may go on to have clampsia, which is a seizure disorder of the brain." Trial Testimony of Dr. Bolognese, Witness for the Clinics ("Bolognese Testimony"), App. at 614. Both Dr. Bolognese for the clinics and the doctor who testified for the Commonwealth agreed that preeclampsia requires an abortion. Trial Testimony of Dr. Bowes, Witness for the Commonwealth ("Bowes Testimony"), App. at 889.

The symptoms of inevitable abortion are bleeding from the uterus and cramps in the lower abdominal area. The failure to terminate the pregnancy immediately when this condition exists can lead to extensive blood loss, shock, infection, and, if there is serious hemorrhaging and shock, even death. 744 F.Supp. at 1346-47. The Commonwealth's expert at trial agreed with the clinics' expert that the universally recommended treatment of an inevitable abortion is immediate termination of the pregnancy. Bowes Testimony, App. at 888.

The major risk from a prematurely ruptured membrane is that an infection will occur. If an infection occurs, a woman can be exposed to spread of the infection, an overwhelming septic infection, hemorrhaging, shock, and even death. Bolognese Testimony, App. at 611.

There is no dispute between the parties that preeclampsia, inevitable abortion and prematurely ruptured membrane can lead to a substantial and irreversible impairment of a major bodily function. The record is clear that a failure to obtain an abortion when a woman is diagnosed with preeclampsia can lead to irreversible damage to the liver, kidneys and more; that failure to perform an abortion when a woman is diagnosed with inevitable abortion can eventually lead to death; and that a failure to obtain an abortion when a woman is diagnosed with prematurely ruptured *701 membrane can eventually lead to death. The dispute between the parties concerns the meaning of the phrase "serious risk." The Commonwealth insists that whenever these conditions exist, there is a "serious risk" of substantial and irreversible impairment of a major bodily function. The clinics argue that no such "serious risk" exists until the woman has actually experienced shock or contracted an infection. We conclude that the clinics' interpretation is unduly restrictive.

The word "risk" necessarily implies an event that may or may not happen in the future. Neither "risk" nor the addition of the adjective "serious" implies that the probability assessed is the probability of the hypothesized event occurring immediately following the time of assessment. Accordingly, we do not believe the risk that prematurely ruptured membrane, if untreated, will lead to substantial and irreversible injury only after progressing through shock or infection necessarily means that there is no "serious risk" at the onset of the condition. We assume that the risk of substantial and irreparable impairment of a major bodily function will be quantitatively less at the onset of a prematurely ruptured membrane than after shock has occurred, but this does not mean the risk at onset is not "serious."

The Pennsylvania legislature did not choose the wording of its medical emergency exception in a vacuum, and we do not believe the words chosen should be interpreted in one. In the case of all three conditions pointed to by the clinics, the treatment uniformly prescribed by the medical profession at the time of the legislature's choice was an immediate abortion. This was the recommended treatment in all pregnancies in which these conditions arose, including planned and desired pregnancies. This medical consensus that the risk occasioned is sufficiently serious to call for an immediate abortion was a part of the context in which the medical emergency provision was fashioned.

Moreover, we 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. We believe it should be interpreted with that objective in mind. While the wording seems to us carefully chosen to prevent negligible risks to life or health or significant risks of only transient health problems from serving as an excuse for noncompliance, we decline to construe "serious" as intended to deny a woman the uniformly recommended treatment for a condition that can lead to death or permanent injury.

The essence of the definition in § 3203 is that it allows a woman and her doctors to forego many of the Act's requirements when there is a medical emergency to the woman's physical health, and that includes where a woman has symptoms of preeclampsia, inevitable abortion, or prematurely ruptured membrane. We interpret § 3203 to allow women and doctors to forego the Act's requirements when a woman is diagnosed as having one of these conditions. If the Commonwealth were to choose, in contradiction to its representations to this court, to prevent doctors and women from foregoing the Act's requirements when a woman has been so diagnosed, that application would almost certainly be unconstitutional under present Supreme Court law.

Any doubt on our interpretation of § 3203 is resolved by the procedural posture of the case. This is a facial challenge. The Supreme Court has instructed on numerous occasions that a court is not to strike down a law as unconstitutional on the basis of "a worst-case analysis that may never occur." Ohio, 110 S.Ct. at 2981. The Supreme Court recently applied this principle in a very similar context in Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). There, the regulations at issue did not contain an explicit exception for cases where a woman's pregnancy placed her life in imminent peril, but the Court rejected a facial claim that the regulations would not allow abortion referral in such circumstances. The Court stated that on a facial challenge without "any application by the Secretary to a specific *702 fact situation," it would not read the regulations to bar referral in such cases. Id. 111 S.Ct. at 1773. Similarly presented with a facial challenge, we uphold the medical emergency exception defined in § 3203.

In an alternative challenge, the clinics argue that the medical emergency definition is void for vagueness. The district court did not consider this issue; we do so here and reject it. The Act provides criminal and civil sanctions against doctors who violate the Act's provisions. However, the Act allows doctors and women to forego the Act's requirements when, "on the basis of the physician's good faith clinical judgment," a condition exists that meets the definition of medical emergency in § 3203. The Commonwealth argues that the terms of § 3203 are not vague. They also contend that the subjective standard of "good faith clinical judgment" saves the statute from any problem of vagueness.

In United States v. Vuitch, 402 U.S. 62, 69-72, 91 S.Ct. 1294, 1298-99, 28 L.Ed.2d 601 (1971), the Supreme Court upheld against a vagueness challenge a requirement that an abortion be "necessary for the preservation of the mother's life or health." In Doe v. Bolton, the Court upheld against a vagueness challenge a requirement that the physician determine, on the basis of his or her "best clinical judgment," that an abortion is "necessary." 410 U.S. at 191-92, 93 S.Ct. at 747-48. In contrast, in Colautti v. Franklin, 439 U.S. 379, 390-97, 99 S.Ct. 675, 683-87, 58 L.Ed.2d 596 (1979), the Court struck down on vagueness grounds a requirement that the physician determine if the fetus "is viable" or "may be viable" before performing an abortion. The Court stated that it was unclear whether the Act incorporated a subjective or objective standard. In addition, the definition of "may be viable" was elusive and did not provide sufficient notice.

In this case, the statute requires a physician to violate his or her own good faith clinical judgment in order to be criminally liable. This is a subjective, not an objective standard, thus making the case more similar to Vuitch and Doe than to Colautti. We fail to see how any physician practicing in good faith could fear conviction under the Act.

Moreover, as we have already concluded, the language of § 3203, apart from the "good faith clinical judgment" language, does not prohibit doctors from foregoing the Act's requirements when what are commonly perceived to be medical emergencies exist. The clinics here came up with three medical emergencies that they argued were not covered by the statute. We have held that they are. Physically threatening emergencies are covered; determining whether, in a physician's good faith clinical judgment, one of those emergencies is present is the type of "judgment[ ] that physicians are obviously called upon to make routinely whenever surgery is considered." Doe, 410 U.S. at 192, 93 S.Ct. at 748. Section 3203 provides the fair warning required by the Due Process Clause; it is not void for vagueness.

FN15. Section 3205 of the Act states in relevant part:

(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 has been delegated by either physician, has informed the pregnant woman that:

(i) The department [Pennsylvania Department of Health] 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.... 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 misdeameanor for 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.

Section 3205(a)(1) requires that the referring or performing physician inform a woman contemplating an abortion of: (i) the nature of the abortion procedure and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision whether or not to obtain an abortion; (ii) the probable gestational age of the fetus; and (iii) the medical risks associated with carrying a child to term. Such a provision can be expected to cause four types of burdens: time delay, higher cost, reduced availability, and forcing the woman to receive information she has not sought. We conclude, however, that none of these potential burdens can be characterized as an undue burden.

The time required to provide medical risk information of this kind is acknowledged to be insignificant. While the district court found that higher costs would be occasioned by § 3205(a)(1)'s requirement that physicians rather than counselors provide this information, the district court did not quantify the increase, and this record would not support a finding of an increase of sufficient size to constitute an absolute obstacle or severe limitation on the abortion right. See Webster, 492 U.S. at 530, 109 S.Ct. at 3063 (O'Connor, J., concurring); Akron, 462 U.S. at 467, 473, 103 S.Ct. at 2512, 2516 (O'Connor, J., dissenting). Similarly, this requirement will not cause abortion providers to stop providing any or all abortions and, accordingly, will not cause a drastic or severe reduction in the availability of abortion. Finally, the information provided is accurate and necessary for a woman to make an assessment for her abortion decision. Indeed, the record shows that the clinics, without exception, insist on providing this information to women before an abortion is performed. Thus, the "burden" of forcing a woman to listen *704 to it is not an absolute obstacle or severe limitation. In sum, we agree with Justice O'Connor's characterization of nearly identical requirements in Akron: such requirements "impose no undue burden or drastic limitation on the abortion decision." Akron, 462 U.S. at 472, 103 S.Ct. at 2515 (O'Connor, J., dissenting).

We also have no difficulty concluding that § 3205(a)(1) is rationally related to a legitimate state interest. In Akron, all nine Justices agreed that the state may require a woman contemplating an abortion to receive information about the nature and risks of the abortion procedure. This type of information "clearly is related to maternal health and to the State's legitimate purpose in requiring informed consent." Akron, 462 U.S. at 446, 103 S.Ct. at 2501. The Court in Akron also found that the state has a legitimate interest in requiring that an abortion provider inform the woman of the probable gestational age of the fetus. Finally, there is nothing irrational about a requirement that the provider inform the woman of the medical risks of carrying the pregnancy to term since this is obviously the only medical alternative to abortion. See Thornburgh, 476 U.S. at 830, 106 S.Ct. at 2215 (O'Connor, J., dissenting) (such a requirement provides "the kind of balanced information I would have thought all could agree is relevant to a woman's informed consent"). [FN16]

FN16. The district court stressed that a woman who has decided upon an abortion has no need to know about the risk of carrying to term. This misses what we perceive to be the relevant point. The state may rationally require that a woman not move forward on a decision to abort without evaluating that decision on an informed basis.

FN17. Section 3205(a)(3) requires that a copy of these printed materials be available if the woman chooses to see them.

Once again, the time required to provide the required information is minimal. While requiring that a physician or counselor impart this information will add some cost to the pre-abortion procedure at those clinics that do not already provide options counseling, nothing in the record suggests that the increase will be drastic or even substantial. Similarly, there is no evidence that any abortion provider will stop providing abortions because of this requirement. Indeed, the record indicates that most clinics already require that a counselor consult in *705 person with the woman about alternatives to abortion before the abortion is performed.

Justice O'Connor stated in Thornburgh that informed consent requirements could constitute an undue burden if the information required to be given was irrelevant, inaccurate, or inflammatory. See Thornburgh, 476 U.S. at 830- 31, 106 S.Ct. at 2215-16 (O'Connor, J., dissenting). The information that § 3205 requires a physician or counselor to impart is relevant, accurate, and non-inflammatory. The information regarding the financial assistance to which the woman may be entitled is relevant in that it provides a woman with information necessary to make an informed choice. There is nothing on the face of the statute that suggests that this information is inaccurate. Nor do we see any threat that such information is inflammatory. Moreover, the printed materials concerning the fetus and alternatives to abortion are not forced on the woman; the woman is merely told that such information is available to her if she desires it. As Justice O'Connor stated in Thornburgh, "If the materials were sufficiently inflammatory and inaccurate the fact that the woman must ask to see them would not necessarily preclude finding an undue burden, but there is no indication that this is true of the description of fetal characteristics [or alternatives to abortion] the statute contemplates." Id. at 831, 106 S.Ct. at 2215 (O'Connor, J., dissenting). For these reasons, we conclude that this provision causes nowhere near the kind of burden that must result for a regulation to constitute an undue burden.
We further conclude that this provision is rationally related to a legitimate state interest. Roe recognized that the state has a legitimate interest in the potential life of the fetus throughout pregnancy, and a state may rationally conclude that this interest will be served by assuring that a pregnant woman have knowledge of the resources available to her should she elect to carry to term.

The clinics claim that § 3205(a) requires that a physician or counselor act as an instrument for the dissemination of an ideological message in violation of their First Amendment rights. We find the argument unpersuasive.

This case involves commercial speech, and the clinics do not dispute this point. The First Amendment limits on compelled disclosure requirements for commercial speech were explained by the Court in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). [FN18] There, the Court rejected an attorney's challenge to a state requirement that he include certain information in an advertisement. The Court stressed that the attorney overlooked "material differences between disclosure requirements and outright prohibitions on speech." Id. at 650, 105 S.Ct. at 2281. Disclosure requirements are permissible so long as they are not a state attempt to prescribe what is "orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Id. at 651, 105 S.Ct. at 2282. The Court then held that First Amendment rights "are adequately protected so long as disclosure requirements are reasonably related to the state's interest in preventing deception of consumers." Id.

FN18. The clinics' reliance on Riley v. National Federation for the Blind, 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), is misplaced. The Court there distinguished its case, which did not involve commercial speech, from other cases, and stated that "[p]urely commercial speech is more susceptible to compelled disclosure requirements." Id. at 796 n. 9, 108 S.Ct. at 2675 n. 9.

FN19. The disclosure required by the Pennsylvania Act is similar to a long list of regulations by state and federal governments designed to protect the public. For example, the federal government requires warnings on all cigarette packages, advertisements, and billboards. 15 U.S.C. § 1333 (1988). Federal law requires disclosure in the context of securities transactions. 15 U.S.C. § 78j(b) (1988). Pennsylvania requires financial institutions to disclose rates, terms, definitions, and other information in residential mortgage applications. 41 Pa.Stat.Ann. § 301(e) (Supp.1991).


The clinics' argument is potentially limitless; there is "no reason why a concern for professional freedom could be confined to the medical profession; nothing in the Constitution indicates a preference for the liberty of doctors over that of lawyers, accountants, bakers, or brickmakers." Thornburgh, 476 U.S. at 802-03, 106 S.Ct. at 2200-01 (White, J., dissenting). Thus, if this provision violated the First Amendment, the above-cited disclosure requirements would presumably also have to fall.

Section 3205(a) of the Act requires a mandatory 24-hour waiting period between the time that the physician and counselor provide the required information to a woman and the time that a physician performs the abortion. The woman's consent to the abortion may be given at any time during that period, including right before the abortion.

As the clinics stress, a 24-hour waiting period may result in delays considerably longer than 24 hours because most clinics do not perform abortions every day of the week. Moreover, such a waiting period may require a woman to make two visits to a clinic rather than one. Where the woman has no clinic immediately available and must travel to obtain an abortion, this means that the overall cost of an abortion to her may increase by a significant percentage. And as the district court pointed out, the burden of an additional trip to the clinic falls most heavily on battered wives who often find it difficult to free themselves of their husband's surveillance.

Despite these adverse consequences from the 24-hour waiting period, however, we conclude that this requirement does not constitute an undue burden. In Hodgson, the Supreme Court concluded that a two-parent notification requirement with a judicial bypass was rationally related to a legitimate state interest and, therefore, was constitutional. Justice O'Connor noted that the Court had "explicitly approved judicial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion." Hodgson, 110 S.Ct. at 2950 (O'Connor, J., concurring). The Court reached this conclusion despite the trial court's findings that "scheduling practices in Minnesota courts typically require minors to wait two or three days between their first contact with the court and the hearing on their petitions" and that this delay "may combine with other facts to result in a delay of a week or more." Hodgson v. State of Minnesota, 648 F.Supp. 756 (D.Minn.1986).

Given the Court's conclusion in Hodgson that the length of the delays and the increased costs occasioned by the judicial bypass did not impose an undue burden on the right to an abortion or otherwise require strict scrutiny, we decline to reach a different result with respect to the Commonwealth's imposition of a 24-hour delay for considering the information required by the informed consent requirements. [FN20]

FN20. In Akron, the Supreme Court invalidated an Ohio statute that required a 24-hour delay so that the "woman's decision [would] be informed." 462 U.S. at 450, 103 S.Ct. at 2503. The Court reached this result applying strict scrutiny, however, and as we have explained, we are not bound by the result in Akron if, as we conclude, the Commonwealth's 24-hour waiting period imposes no undue burden. While Justices Stevens and O'Connor in Hodgson viewed Akron's 24-hour waiting period for an adult as less justified by the state's interest than a 48-hour waiting period for a minor after notification of a parent, 110 S.Ct. at 2944 n. 35, nothing said in Hodgson suggests to us that the Commonwealth's 24- hour waiting period is an undue burden. As Justice O'Connor stressed in Hodgson, the Court has consistently viewed judicial bypass provisions as a means of avoiding an undue burden and, it necessarily follows that the time required to pursue such a bypass cannot constitute one. That time varies depending on the statute involved, but necessarily involves at least several days. The judicial bypass approved in Planned Parenthood v. Ashcroft, 462 U.S. 476, 477 n. 4, 491 n. 16, 103 S.Ct. 2517, 2519 n. 4, 2525 n. 16, 76 L.Ed.2d 733 (1983), could require 17 calendar days; the bypass approved in Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 2980-81, 111 L.Ed.2d 405 (1990), could require 14 days.

FN21. The Court in Akron in striking down a similar 24-hour waiting period occasionally used language similar to that of rational basis review in considering the relationship between a waiting period and maternal health. However, we believe that the Court's level of review in Akron for all abortion regulations was strict scrutiny. See Akron, 462 U.S. at 428-31, 103 S.Ct. at 2491-93 (outlining Roe standard); Hodgson, 110 S.Ct. at 2952 (Marshall, J., dissenting) (citing Akron in stating, "we have subjected state laws limiting that right to the most exacting scrutiny, requiring a State to show that such a law is narrowly drawn to serve a compelling state interest").

FN22. Section 3206 of the Act provides in part:

(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 ..., 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.

. . . . .
(c) PETITION TO 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.

. . . . .
(f) PROCEEDINGS.--


(1) Court proceedings under this section shall be confidential and shall be given such precedence over other pending matters as will ensure that the court may reach a decision promptly and without delay in order to serve the best interests of the pregnant woman. In no case shall the court of
common pleas fail to rule within three business days of the date of application. A court of common pleas which conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting its decision and shall, upon the initial filing of the minor's petition for judicial authorization of an abortion, order a sealed record of the petition, pleadings, submissions, transcripts, exhibits, orders, evidence and any other written material to be maintained which shall include its own findings and conclusions.

. . . . .
(3) The name of the pregnant woman shall not be entered on any docket which is subject to public inspection. All persons shall be excluded from hearings under this section except the applicant and such other persons whose presence is specifically requested by the applicant or her guardian.

. . . . .
(h) REGULATION OF PROCEEDINGS.--


... Any court to which an appeal is taken under this section shall give prompt and confidential attention thereto and shall rule thereon within five business days of the filing of the appeal.

. . . . .
(i) PENALTY.--Any person who performs an abortion upon a woman who is an unemancipated minor or incompetent to whom this section applies either with knowledge that she is a minor or incompetent to whom this section applies, or with reckless disregard or negligence as to whether she is a minor or incompetent to whom this section applies, and who intentionally, knowingly or recklessly fails to conform to any requirement of this section is guilty of "unprofessional conduct" and his license for the practice of medicine and surgery shall be suspended ... for a period of at least three months.

FN23. The district court held that the requirement of "informed" parental consent would necessitate in-person parental consent. We need not decide whether that is correct, for any burden caused by one-parent, in-person consent is surely no more than that caused by two-parent consent, cf. Hodgson, 110 S.Ct. at 2970; and the Supreme Court has held that a judicial bypass option alleviates the undue burden caused by two-parent consent requirements.

Bellotti II set out the constitutional requirements for a bypass procedure that the Court has followed in a number of subsequent cases:
A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.
Bellotti II, 443 U.S. at 622, 99 S.Ct. at 3037.

*709 The Pennsylvania Act's bypass procedure complies with each of the four requirements set forth in Bellotti II. Under § 3206, if a minor woman does not wish to or cannot obtain the consent of a parent, she may file a motion or petition with the court of common pleas in the district where she lives or in which the abortion is sought. A judge of the court of common pleas must hold a hearing, at which the woman has a right to court-appointed counsel. At the hearing, the judge must determine if the woman is mature and able to make her own decision and has in fact consented to the abortion. If so, the judge must allow the abortion. Furthermore, if the judge finds that the woman is not mature and able to make her own decision, the judge must decide if an abortion would nevertheless be in her best interests. 18 Pa. Cons.Stat.Ann. § 3206(c)-(d) (1983 & Supp.1991). This statutory language mirrors the Bellotti II requirements for the factors that must guide a judge in making this decision.

In accordance with Bellotti II, the statute requires that the proceedings be confidential. Id. § 3206(f). Initials must be used to identify the woman in all documents. The hearing before the common pleas judge must be closed, and the appeals procedure must also be confidential. The record of the proceedings must be sealed.

Section 3206 also meets the promptness requirement of Bellotti II. Section 3206 requires that the court hold the hearing and render a decision within three business days of the application by the woman. The woman has a right to appeal to the Superior Court if the court of common pleas does not grant her permission. The Superior Court decision must be rendered within five business days of the filing of an appeal. Id. § 3206(f), (h). This entire procedure should last no longer than eight business days. In Ohio, the Supreme Court upheld Ohio's bypass procedure, which required the trial court to make its decision within five business days and required the court of appeals to decide within nine days after the filing of a notice of appeal. 110 S.Ct. at 2980. The Pennsylvania statute requires a quicker decision than did Ohio's, and the Supreme Court held that Ohio's procedure was sufficiently prompt. The Commonwealth's bypass procedure thus meets the Bellotti II requirements and alleviates the undue burden that would be caused by a parental consent statute with no judicial bypass. Cf. Glick v. McKay, 937 F.2d 434 (9th Cir.1991) (striking down parental consent statute because bypass provision did not specify time in which judge had to render decision).

We further conclude that requiring parental consent in combination with a judicial bypass procedure passes rational basis review. It is not irrational for the state to require adult guidance for a minor woman, eleven or twelve years old in some cases, see 744 F.Supp. at 1343, in deciding whether to obtain an abortion. See Hodgson, 110 S.Ct. at 2950-51 (O'Connor, J., concurring); Ohio, 110 S.Ct. at 2983-84; H.L. v. Matheson, 450 U.S. 398, 411, 101 S.Ct. 1164, 1172, 67 L.Ed.2d 388 (1981); Bellotti II, 443 U.S. at 634-37, 640-41, 99 S.Ct. at 3043-45, 3046-47; Danforth, 428 U.S. at 91, 96 S.Ct. at 2851 (Stewart, J., concurring).

FN24. Section 3209 of the Act states:

(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.

(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 statements 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 the case of a medical emergency.

. . . . .
(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 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.

First, we must consider whether § 3209 imposes an undue burden on the woman's abortion decision. At this point, it is important to emphasize that we do not consider the countervailing interest of the husband; we consider only the burden imposed on the woman. After we conduct this threshold analysis, as we must, then we will address the Commonwealth's interest in furthering the husband's interest.

A spousal notice requirement does not cause a drastic or severe time delay, increase in costs, or decrease in the number of abortion providers. Nor does it give a state-sanctioned veto power over the woman's abortion decision to another person. But as Justice O'Connor noted in Hodgson, a provision requiring a woman to notify another person before obtaining an abortion can impose an undue burden in two other ways. First, the act of finding the person to whom notice must be given may constitute an undue burden. In Hodgson, so many parents in Minnesota were divorced that it would have been a great burden in many cases for the child to track down the other parent. This is not a problem with the Commonwealth's spousal notific