Is potential regret constitutionally significant? Justice O'Connor thought so.

In the Casey decision (section V(B)), Justice Sandra Day O'Connor wrote "It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed." (my emphasis)

I don't know why Kennedy didn't cite her on this point. He essentially (1)appeals precisely to the above "legitimate purpose" already noted by O'Connor, (2)adds the empirical claims (a)that the consequences of such an a posteriori discovery are far worse than usual in the case of an "intact D&E" abortion and (b)that (therefore?) most abortion doctors doing an "intact D&E" will not adequately inform their clients, and so (3) concludes that the State may require abortion doctors to use a procedure that is less potentially psychologically destructive to women.

Makes sense to me. I can think of another way the State could try to accomplish this goal, i.e.by setting up official counseling centers unrelated to any abortion business and requiring all women to be counseled there instead of by the guy who will make money from the abortion (as is done in Germany). But don't think the State is required to narrowly tailor its protective methods here, and I'm not sure that required separate counseling would be considered more narrowly tailored anyway. It certainly would be a much more expensive way to end up in almost the same place, i.e. with no one doing partial-birth abortions except in cases of extreme health risk (as allowed in theory by Kennedy).