Full opinion text
OPINION OF THE COURT 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. I. The clinics filed a complaint alleging that certain 1988 amendments to the Pennsylvania Abortion Control Act of 1982 were facially unconstitutional. The district court issued a preliminary injunction. Thereafter, the court stayed all proceedings pending the Supreme Court’s decision in Webster v. Reproductive Health Services in the summer of 1989. After the Webster decision, the Pennsylvania legislature passed further amendments to the Act. The clinics filed an amended complaint to include the 1989 amendments within the scope of their challenge, and the district court extended the preliminary injunction to include the 1989 amendments. The district court then conducted a three-day trial and issued an opinion holding several sections of the Act unconstitutional. 744 F.Supp. 1323. The Commonwealth filed this timely appeal. The clinics have not cross-appealed on the provisions upheld by the district court. The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. II. In Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), the Supreme Court declined to reconsider Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), because the Missouri abortion regulations at issue in Webster did not conflict with Roe, which held that a statute which “criminalized the performance of all abortions, except when the mother’s life was at stake ... unconstitutionally infringed the right to an abortion.” Webster, 492 U.S. at 521, 109 S.Ct. at 3058 (opinion of Rehnquist, C.J.). Like Webster, this appeal does not directly implicate Roe; this case involves the regulation of abortions rather than their outright prohibition. The threshold question is whether the standard of review of abortion regulations promulgated by the Court in Roe and in later cases such as Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), has survived Webster and the Court’s subsequent decision in Hodgson v. Minnesota, — U.S. —, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990). 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, — U.S. —, 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. A. The choice of a standard of review in a substantive due process case turns on whether a “fundamental right” is implicated. The Justices of the Supreme Court were divided in Roe v. Wade and have continued to be divided over whether the right to an abortion is a fundamental right under the Due Process Clause. Accordingly, they have disagreed over the proper standard to apply in reviewing abortion regulations. The majority in Roe concluded that abortion was a fundamental right and, therefore, applied strict scrutiny review, the standard of review generally applied in fundamental rights cases. See Roe, 410 U.S. at 155, 93 S.Ct. at 728. The dissenters in Roe contended that abortion was not a fundamental right and thus judicial review of abortion regulations under the Due Process Clause should be no different from review of any social or economic legislation implicating a liberty interest. Therefore, they urged that the Court apply the deferential rational basis test traditionally used to review social and economic legislation. See id. at 173, 93 S.Ct. at 737 (Rehnquist, J., dissenting). Justice O’Con-nor has referred to the right to abortion as a “limited” fundamental right and adopted a middle ground between these two positions. She uses the strict scrutiny standard if the regulation at issue causes an “undue burden” on a woman’s abortion decision and the rational basis standard if it does not. See Akron, 462 U.S. at 453, 465 n. 10, 103 S.Ct. at 2504, 2511 n. 10 (O’Connor, J., dissenting). 1. In Roe, the Court held that the fundamental right of privacy protected by the Due Process Clause of the Fourteenth Amendment was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe, 410 U.S. at 153, 93 S.Ct. at 727. Thus, the Court stated that a regulation limiting that fundamental right must meet the strict scrutiny test; it must be justified by a “compelling state interest” and “must be narrowly drawn” to serve that interest. Id. at 155, 93 S.Ct. at 728. The Court held that the state’s interests in maternal health and in the potential life of the fetus become compelling at different points in a woman’s pregnancy. The state’s interest in maternal health is compelling during the second and third trimesters; the state’s interest in potential life is compelling when the fetus is viable, that is, during the third trimester. Id. at 162-64, 93 S.Ct. at 731-32. In dissent in Hodgson, the most recent abortion case, Justice Marshall, joined by Justices Brennan and Blackmun, summarized the approach of cases such as Roe, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), Akron, and Thorn-burgh: “we have subjected state laws limiting [the abortion] right to the most exacting scrutiny, requiring a State to show that such a law is narrowly drawn to serve a compelling interest. Only such strict judicial scrutiny is sufficiently protective of a woman’s right to make the intensely personal decision whether to terminate her pregnancy.” Hodgson, 110 S.Ct. at 2952 (Marshall, J., dissenting) (citations omitted). 2. 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). 3. Justice O’Connor has taken 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, 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); Hodg-son, 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. With respect to the concept of “undue burden,” Justice O’Connor explained in Akron that an undue burden occurs when a regulation imposes an “absolute obstacle[ ] or severe limitation[ ] on the abortion decision,” not merely when a regulation “may ‘inhibit’ abortions to some degree.” Akron, 462 U.S. at 464,103 S.Ct. at 2510 (O’Connor, J., dissenting). She repeated this definition in other cases. In Thornburgh, she stated that “an undue burden will generally be found in situations involving absolute obstacles or severe limitations on the abortion decision.” Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O’Connor, J., dissenting). And in Hodg-son, she observed 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.’ ” Hodgson, 110 S.Ct. at 2950-51 (O’Connor, J., concurring) (emphasis added) (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 90, 96 S.Ct. 2831, 2850, 49 L.Ed.2d 788 (1976)). Also in Hodg-son, Justice O’Connor approved the judicial bypass procedure for the two-parent notification requirement on the grounds that it “would not impose parental approval as an absolute condition upon the minor’s right.” Id. 110 S.Ct. at 2951 (quoting Danforth, 428 U.S. at 91, 96 S.Ct. at 2851) (emphasis added). B. Having identified the three approaches that the Justices have suggested for reviewing abortion regulations, we must now decide which standard is presently the law of the land. As we have noted, the Court applied strict scrutiny review in Roe, Doe, Akron and Thornburgh. We thus must review Webster and Hodgson to determine if the standard of review used in those cases displaced strict scrutiny as the standard binding on lower courts. In making that determination, we will apply several principles of law that constrain lower courts in their decisionmaking. 1. Decisions of the Supreme Court regarding federal law and the Constitution are binding on the lower courts. There is no room in our system for departure from this principle, for if it were otherwise, the law of the land would quickly lose its coherence. See Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (1982). The Supreme Court with its limited docket would become irrelevant in all but the handful of cases that reached it. To say that such decisions are binding, however, does not suffice in the current context. We must determine what components of a Supreme Court decision constitute precedent binding on lower courts. In constitutional cases, the Court’s opinions usually include two major aspects. First, the Court provides the legal standard or test that is applicable to laws implicating a particular constitutional provision. This is part of the reasoning of the decision, the ratio decidendi. Second, the Court applies that standard or test to the particular facts of the case that the Court is confronting — in other words, it reaches a specific result using the standard or test. See, e.g., Barnes v. Glen Theatre, Inc., — U.S. —, 111 S.Ct. 2456,115 L.Ed.2d 504 (1991) (applying four-part O’Brien test and holding ban on nude dancing constitutional); Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (applying new Free Exercise Clause standard to uphold state ban on peyote use). As a lower court, we are bound by both the Supreme Court’s choice of legal standard or test and by the result it reaches under that standard or test. As Justice Kennedy has stated, courts are bound to adhere not only to results of cases, but also “to their explications of the governing rules of law.” County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 668, 109 S.Ct. 3086, 3141, 106 L.Ed.2d 472 (1989) (Kennedy, J., dissenting); see also Marks v. United States, 430 U.S. 188, 194, 97 S.Ct. 990, 994, 51 L.Ed.2d 260 (1977) (previous case provided “governing standards”). Our system of precedent or stare decisis is thus based on adherence to both the reasoning and result of a case, and not simply to the result alone. This distinguishes the American system of precedent, sometimes called “rule stare de-cisis,” from the English system, which historically has been limited to following the results or disposition based on the facts of a case and thus referred to as “result stare decisis.” See Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum.L.Rev. 756, 757 n. 7 (1980) (“The American system of precedent places substantially greater reliance on the reasoning component of judicial decisions than, for example, the British system, where the House of Lords issues individual opinions with the understanding that only the specific result will have precedential force.”); see generally R. Aldisert, The Judicial Process 618-35, 777-801 (1976). 2. 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 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 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. In splintered Supreme Court decisions where there has been a common denominator standard that would necessarily produce results with which a majority of the Justices from the controlling case would agree, the Supreme Court and the lower courts have consistently identified as binding precedent the opinion setting forth that standard. See Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859 (1976) (identifying three-Justice plurality opinion from Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), as binding); S.J. Groves & Sons Co. v. Fulton County, 920 F.2d 752 (11th Cir.1991) (following Chief Justice Burger’s opinion from Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980)); Lundblad v. Celeste, 874 F.2d 1097 (6th Cir.1989) (following Justice Stewart’s opinion in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)); Stegmaier v. Trammell, 597 F.2d 1027 (5th Cir.1979) (same); Islamic Center of Mississippi, Inc. v. City of Starksville, 876 F.2d 465 (5th Cir.1989) (following Justice O’Connor’s opinion in Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (“Delaware Valley II”); Student Public Interest Research Group of New Jersey, Inc. v. AT & T Bell Laboratories, 842 F.2d 1436 (3d Cir.1988) (same). The binding opinion from a splintered decision is as authoritative for lower courts as a nine-Justice opinion. While the opinion’s symbolic and perceived authority, as well as its duration, may be less, that makes no difference for a lower court. This is true even if only one Justice issues the binding opinion. In Blum v. Witco Chemical Corp., 888 F.2d 975, 981 (3d Cir. 1989), for example, we concluded, as has every other court of appeals to address the issue, that Justice O’Connor’s concurring opinion in Delaware Valley II governed subsequent counsel fee cases even though no other Justice joined that opinion. We acknowledged that, “[although there is some awkwardness in attributing precedential value to an opinion of one Supreme Court justice to which no other justice adhered, it is the usual practice when that is the determinative opinion.” Blum, 888 F.2d at 981. 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. 3. With this background, we turn to the Supreme Court’s abortion jurisprudence to determine whether the strict scrutiny legal standard endorsed by the Court in Roe, Akron, and Thornburgh remains the applicable standard after Webster and Hodgson. The primary issue in Webster was the constitutionality of Missouri’s viability testing provision. The five Justices in the majority issued three, opinions in upholding that viability testing provision. Chief Justice Rehnquist’s opinion, joined by Justices White and Kennedy, upheld the provision under the “permissibly furthers” standard, the equivalent of rational basis review. Justice Scalia concurred, similarly rejecting strict scrutiny review of abortion regulations and arguing that Roe should be explicitly overruled. The four. Justices in dissent would have applied the- traditional strict scrutiny test. In her concurring opinion, Justice O’Con-nor used the undue burden standard that she had articulated in past dissents. She concluded that Missouri’s viability testing requirement was constitutional because it did not impose an undue burden on a woman's abortion decision and was rationally related to a legitimate state interest. She stated: 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). Hodgson was decided in a similar manner. There the Court addressed the constitutionality of a two-parent notification' requirement without a judicial bypass option and a two-parent notification requirement with a judicial bypass option. Five Justices — Justices O’Connor, Brennan, Marshall, Blackmun, and Stevens — held that a two-parent notification statute without a judicial bypass procedure was unconstitutional. Justice O’Connor found that the regulation caused an undue burden and failed to survive strict scrutiny review. She articulated the standard as follows: 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, 482 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 de-cisionmaking 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 con-eluded 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. 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 Hodg-son. 4. 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 Hodg-son 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 Thorn-burgh, 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 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. In order to change course in a particular area, it simply is unnecessary for the Supreme Court to go case-by-case through fact patterns that the Court had previously addressed under a repudiated standard. If the standard is replaced, decisions reached under the old standard are not binding. We thus conclude that a change in the legal test or standard governing a particular area is a change binding on lower courts that makes results reached under a repudiated legal standard no longer binding. In sum, Justice O’Connor’s undue burden standard is the law of the land, and we will apply that standard to all provisions of the Pennsylvania Act at issue in this appeal. III. 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). 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; Dan-forth, 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. A. The Medical Emergency Exception 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 fore-go 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 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 preec-lampsia, 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 preeclamp-sia, 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 ease 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 preec-lampsia 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 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 preec-lampsia, inevitable abortion, or prematurely ruptured membrane. We interpret § 3203 to allow women and doctors to fore-go 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, — U.S. —, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). There, the regulations at issue did not contain an explicit exception for eases 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 fact situation,” it would not read the regulations to bar referral in such cases. Id. Ill 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 fore-go 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. B. The Informed Consent Requirement Section 3205(a) contains the informed consent provisions of the Act. Three aspects of that section are at issue in this appeal: two information disclosure requirements and a requirement that the woman wait 24 hours between the time she receives this information and the time the abortion is performed. We address these provisions in turn. 1. Physician-Disclosed Information 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)(l)’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 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”). Turning from the content of the required advice to the manner of its presentation, we think it patent that a state may rationally decide that physicians are better qualified than counselors to impart this information and answer questions about the medical aspects of the available alternatives. While the record contains evidence that counselors at the clinics are often capable of informing women about the abortion procedure, that is not the issue; the issue is whether the state may rationally conclude that physicians as a class are better equipped to provide such medical information and answer questions about the abortion procedure and the alternative. We believe the Commonwealth could rationally so conclude and, accordingly, that § 3205(a)(1) is a constitutionally valid regulation. Cf. Williamson v. Lee Optical, 348 U.S. 483, 487, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). 2. Counselor-Disclosed Information Section 3205(a)(2) requires that a physician or counselor (“any qualified agent of the physician”) inform a woman: (i) that medical assistance benefits may be available for prenatal, childbirth, and neonatal care and that more information about the benefits is available in state-printed materials; (ii) that the father of the child is liable to assist in support of the child (this information is not required to be given in rape cases); and (iii) that the Pennsylvania Department of Health publishes printed materials which describe the fetus at various intervals and list agencies which offer alternatives to abortion and that such materials are available free of charge. Applying the threshold undue burden standard, we conclude that this provision does not cause an undue burden; in addition, we find it rationally related to a legitimate state interest. Therefore, we uphold it against the clinics' challenge. 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 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. 3. First Amendment Implications of Section 3205(a) The clinics claim that § 3205(a) requires that a physician or counselor act as an instrument for the dissemination of an id