|||SUPREME COURT OF THE UNITED STATES
428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788
|||July 1, 1976
|||PLANNED PARENTHOOD OF CENTRAL MISSOURI ET AL.
DANFORTH, ATTORNEY GENERAL OF MISSOURI, ET AL.
|||APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
|||Frank Susman argued the cause for appellants in No. 74-1151 and for appellees
in No. 74-1419. With him on the brief was Judith Mears.
|||John C. Danforth, pro se, Attorney General of Missouri, argued the cause
for appellees in No. 74-1151 and for appellant in No. 74-1419. With him
on the brief were D. Brook Bartlett, First Assistant Attorney General, and
Karen M. Iverson and Christopher R. Brewster, Assistant Attorneys General.*
|||Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist,
|||The opinion of the court was delivered by: Blackmun
|||Two Missouri-licensed physicians, one of whom performs abortions at hospitals
and the other of whom supervises abortions at Planned Parenthood, a not-for-profit
corporation, brought suit, along with that organization, for injunctive
and declaratory relief challenging the constitutionality of the Missouri
abortion statute. The provisions under attack are: § 2 (2), defining
"viability" as "that stage of fetal development when the life of the unborn
child may be continued indefinitely outside the womb by natural or artificial
life-supportive systems"; § 3 (2), requiring that before submitting
to an abortion during the first 12 weeks of pregnancy a woman must consent
in writing to the procedure and certify that "her consent is informed and
freely given and is not the result of coercion"; § 3 (3), requiring,
for the same period, the written consent of the spouse of a woman seeking
an abortion unless a licensed physician certifies that the abortion is necessary
to preserve the mother's life; § 3 (4), requiring, for the same period,
and with the same proviso, the written consent of a parent or person in
loco parentis to the abortion of an unmarried woman under age 18; §
6 (1), requiring the physician to exercise professional care to preserve
the fetus' life and health, failing which he is deemed guilty of manslaughter
and is liable in an action for damages; § 7, declaring an infant who
survives an attempted abortion not performed to save the mother's life or
health an abandoned ward of the State, and depriving the mother and a consenting
father of parental rights; § 9, prohibiting after the first 12 weeks
of pregnancy the abortion procedure of saline amniocentesis as "deleterious
to maternal health"; and §§ 10 and 11, prescribing reporting and
recordkeeping requirements for health facilities and physicians performing
abortions. The District Court ruled that the two physicians had "obvious
standing" to maintain the suit and that it was therefore unnecessary to
determine if Planned Parenthood also had standing. On the merits, the court
upheld the foregoing provisions with the exception of § 6 (1)'s professional-skill
requirement, which was held to be "unconstitutionally overbroad" because
it failed to exclude the pregnancy stage prior to viability.
|||1. The physician-appellants have standing to challenge the foregoing provisions
of the Act with the exception of § 7, the constitutionality of which
the Court declines to decide. Doe v. Bolton, 410 U.S. 179. P. 62, and n.2.
|||2. The definition of viability in § 2 (2) does not conflict with
the definition in Roe v. Wade, 410 U.S. 113, 160, 163, as the point at which
the fetus is "potentially able to live outside the mother's womb, albeit
with artificial aid," and is presumably capable of "meaningful life outside
the mother's womb." Section 2 (2) maintains the flexibility of the term
"viability" recognized in Roe. It is not a proper legislative or judicial
function to fix viability, which is essentially for the judgment of the
responsible attending physician, at a specific point in the gestation period.
|||3. The consent provision in § 3 (2) is not unconstitutional. The
decision to abort is important and often stressful, and the awareness of
the decision and its significance may be constitutionally assured by the
State to the extent of requiring the woman's prior written consent. Pp.
|||4. The spousal consent provision in § 3 (3), which does not comport
with the standards enunciated in Roe v. Wade, (supra) , at 164-165, is unconstitutional,
since the State cannot "'delegate to a spouse a veto power which the tate
itself is absolutely and totally prohibited from exercising during the first
trimester of pregnancy.'" Pp. 67-72.
|||5. The State may not constitutionally impose a blanket parental consent
requirement, such as § 3 (4), as a condition for an unmarried minor's
abortion during the first 12 weeks of her pregnancy for substantially the
same reasons as in the case of the spousal consent provision, there being
no significant state interests, whether to safeguard the family unit and
parental authority or otherwise, in conditioning an abortion on the consent
of a parent with respect to the under-18-year-old pregnant minor. As stressed
in Roe, "the abortion decision and its effectuation must be left to the
medical judgment of the pregnant woman's attending physician." 410 U.S.,
at 164. Pp. 72-75.
|||6. Through § 9 the State would prohibit the most commonly used abortion
procedure in the country and one that is safer, with respect to maternal
mortality, than even the continuation of pregnancy until normal childbirth
and would force pregnancy terminations by methods more dangerous to the
woman's health than the method outlawed. As so viewed (particularly since
another safe technique, prostaglandin, is not yet available) the outright
legislative proscription of saline amniocentesis fails as a reasonable protection
of maternal health. As an arbitrary regulation designed to prevent the vast
majority of abortions after the first 12 weeks, it is plainly unconstitutional.
|||7. The reporting and recordkeeping requirements, which can be useful to
the State's interest in protecting the health of its female citizens and,
may be of medical value, are not constitutionally offensive in themselves,
particularly in view of reasonable confidentiality and retention provisions.
They thus do not interfere with the abortion decision or the physician-patient
relationship. It is assumed that the provisions will not be administered
in an unduly burdensome way and that patients will not be required to execute
spousal or parental consent forms in accordance with invalid provisions
of the Act. Pp. 79-81.
|||8. The first sentence of § 6 (1) impermissibly requires a physician
to preserve the fetus' life and health, whatever the stage of pregnancy.
The second sentence, which provides for criminal and civil liability where
a physician fails "to take such measures to encourage or to sustain the
life of the child, and the death of the child results," does not alter the
duty imposed by the first sentence or limit that duty to pregnancies that
have reached the stage of viability, and since it is inseparably tied to
the first provision, the whole section is invalid. Pp. 81-84.
|||392 F. Supp. 1362, affirmed in part, reversed in part, and remanded.
|||BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, STEWART,
MARSHALL, and POWELL, JJ., joined, in all but Parts IV-D and IV-E of which
STEVENS, J., joined, and in all but Parts IV-C, IV-D, IV-E, and IV-G of
which BURGER, C.J., and WHITE and REHNQUIST, JJ., joined. STEWART, J., filed
a Concurring opinion, in which POWELL, J., joined, post, p. 89. WHITE, J.,
filed an opinion Concurring in part and Dissenting in part, in which BURGER,
C.J., and REHNQUIST, J., joined, post, p. 92. STEVENS, J., FILED AN OPINION
CONCURRING IN PART AND DISSENTING IN PART, POST, P. 101.
|||MR. JUSTICE BLACKMUN delivered the opinion of the Court.
|||This case is a logical and anticipated corollary to Roe v. Wade, 410 U.S.
113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), for it raises issues
secondary to those that were then before the Court. Indeed, some of the
questions now presented were forecast and reserved in Roe and Doe. 410 U.S.,
at 165 n. 67.
|||After the decisions in Roe and Doe, this Court remanded for reconsideration
a pending Missouri federal case in which the State's then-existing abortion
legislation, Mo. Rev. Stat.§§ 559.100, 542.380, and 563.300 (1969),
was under constitutional challenge. Rodgers v. Danforth, 410 U.S. 949 (1973).
A three-Judge federal court for the Western District of Missouri, in an
unreported decision, thereafter declared the challenged Missouri statutes
unconstitutional and granted injunctive relief. On appeal here, that judgment
was summarily affirmed. Danforth v. Rodgers, 414 U.S. 1035 (1973).
|||In June 1974, somewhat more than a year after Roe and Doe had been decided,
Missouri's 77th General Assembly, in its Second Regular Session, enacted
House Committee Substitute for House Bill No. 1211 (hereinafter Act). The
legislation was approved by the Governor on June 14, 1974, and became effective
immediately by reason of an emergency clause contained in § A of the
statute. The Act is set forth in full as the Appendix to this opinion. It
imposes a structure for the control and regulation of abortions in Missouri
during all stages of pregnancy.
|||Three days after the Act became effective, the present litigation was
instituted in the United States District Court for the Eastern District
of Missouri. The plaintiffs are Planned Parenthood of Central Missouri,
a not-for-profit Missouri corporation which maintains a facility in Columbia,
Mo., for the performance of abortions; David Hall, M.D.; and Michael Freiman,
M.D. Doctor Hall is a resident of Columbia, is licensed as a physician in
Missouri, is chairman of the Department and Professor of Obstetrics and
Gynecology at the University of Missouri Medical School at Columbia, and
supervises abortions at the Planned Parenthood facility. He was described
by the three-Judge court in the 1973 case as one of four plaintiffs who
were "eminent, Missouri-licensed obstetricians and gynecologists." Jurisdictional
Statement, App. A7, in Danforth v. Rodgers, No. 73-426, O.T. 1973. Doctor
Freiman is a resident of St. Louis, is licensed as a physician in Missouri,
is an instructor of Clinical Obstetrics and Gynecology at Washington University
Medical School, and performs abortions at two St. Louis hospitals and at
a clinic in that city.
|||The named defendants are the Attorney General of Missouri and the Circuit
Attorney of the city of St. Louis "in his representative capacity" and "as
the representative of the class of all similar Prosecuting Attorneys of
the various counties of the State of Missouri." Complaint 10.
|||The plaintiffs brought the action on their own behalf and, purportedly,
"on behalf of the entire class consisting of duly licensed physicians and
surgeons presently performing or desiring to perform the termination of
pregnancies and on behalf of the entire class consisting of their patients
desiring the termination of pregnancy, all within the State of Missouri."
Id., at 9. Plaintiffs sought declaratory relief and also sought to enjoin
enforcement of the Act on the ground, among others, that certain of its
provisions deprived them and their patients of various constitutional rights:
"the right to privacy in the physician-patient relationship"; the physicians'
"right to practice medicine according to the highest standards of medical
practice"; the female patients' right to determine whether to bear children;
the patients' "right to life due to the inherent risk involved in childbirth"
or in medical procedures alternative to abortion; the physicians' "right
to give and plaintiffs' patients' right to receive safe and adequate medical
advice and treatment, pertaining to the decision of whether to carry a given
pregnancy to term and the method of termination"; the patients' right under
the Eighth Amendment to be free from cruel and unusual punishment "by forcing
and coercing them to bear each pregnancy they conceive"; and, by being placed
"in the position of decision making beset with... inherent possibilities
of bias and conflict of interest," the physician's right to due process
of law guaranteed by the Fourteenth Amendment. Id., at 10-11.
|||The particular provisions of the Act that remained under specific challenge
at the end of trial were § 2 (2), defining the term "viability"; §
3 (2), requiring from the woman, prior to submitting to abortion during
the first 12 weeks of pregnancy, a certification in writing that she consents
to the procedure and "that her consent is informed and freely given and
is not the result of coercion"; § 3 (3), requiring, for the same period,
"the written consent of the woman's spouse, unless the abortion is certified
by a licensed physician to be necessary in order to preserve the life of
the mother"; § 3 (4), requiring, for the same period, "the written
consent of one parent or person in loco parentis of the woman if the woman
is unmarried and under the age of eighteen years, unless the abortion is
certified by a licensed physician as necessary in order to preserve the
life of the mother"; § 6 (1), requiring the physician to exercise professional
care "to preserve the life and health of the fetus" and, failing such, deeming
him guilty of manslaughter and making him liable in an action for damages;
§ 7, declaring an infant, who survives "an attempted abortion which
was not performed to save the life or health of the mother," to be "an abandoned
ward of the state under the jurisdiction of the juvenile court," and depriving
the mother, and also the father if he consented to the abortion, of parental
rights; § 9, the legislative finding that the method of abortion known
as saline amniocentesis "is deleterious to maternal health," and prohibiting
that method after the first 12 weeks of pregnancy; and §§ 10 and
11, imposing reporting and maintenance of record requirements for health
facilities and for physicians who perform abortions.
|||The case was presented to a three-Judge District Court convened pursuant
to the provisions of 28 U.S.C. §§ 2281 and 2284. 392 F. Supp.
1362 (1975). The court ruled that the two physician-plaintiffs had standing
inasmuch as § 6(1) provides that the physician who fails to exercise
the prescribed standard of professional care due the fetus in the abortion
procedure shall be guilty of manslaughter, and § 14 provides that any
person who performs or aids in the performance of an abortion contrary to
the provisions of the Act shall be guilty of a misdemeanor. 392 F. Supp.,
at 1366-1367. Due to this "obvious standing" of the two physicians, id.,
at 1367, the court deemed it unnecessary to determine whether Planned Parenthood
also had standing.
|||On the issues as to the constitutionality of the several challenged sections
of the Act, the District Court, largely by a divided vote, ruled that all
except the first sentence of § 6(1) withstood the attack. That sentence
was held to be constitutionally impermissible because it imposed upon the
physician the duty to exercise at all stages of pregnancy "that degree of
professional skill, care and diligence to preserve the life and health of
the fetus" that "would be required... to preserve the life and health of
any fetus intended to be born." Inasmuch as this failed to exclude the stage
of pregnancy prior to viability, the provision was "unconstitutionally overbroad."
392 F. Supp., at 1371.
|||One Judge concurred in part and Dissented in part. Id., at 1374. He agreed
with the majority as to the constitutionality of §§ 2(2), 3(2),
10, and 11, respectively relating to the definition of "viability," the
woman's prior written consent, maintenance of records, and retention of
records. He also agreed with the majority that § 6(1) was unconstitutionally
overbroad. He Dissented from the majority opinion upholding the constitutionality
of §§ 3(3), 3(4), 7, and 9, relating, respectively, to spousal
consent, parental consent, the termination of parental rights, and the proscription
of saline amniocentesis.
|||In No. 74-1151, the plaintiffs appeal from that part of the District Court's
judgment upholding sections of the Act as constitutional and denying injunctive
relief against their application and enforcement. In No. 74-1419, the defendant
Attorney General cross-appeals from that part of the judgment holding §
6(1) unconstitutional and enjoining enforcement thereof. We granted the
plaintiffs' application for stay of enforcement of the Act pending appeal.
420 U.S. 918 (1975). Probable jurisdiction of both appeals thereafter was
noted. 423 U.S. 819 (1975).
|||For convenience, we shall usually refer to the plaintiffs as "appellants"
and to both named defendants as "appellees."
|||In Roe v. Wade the Court concluded that the "right of privacy, whether
it be founded in the Fourteenth Amendment's concept of personal liberty
and restrictions upon state action, as we feel it is, or, as the District
Court determined, in the Ninth Amendment's reservation of rights to the
people, is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy." 410 U.S., at 153. It emphatically rejected, however,
the proffered argument "that the woman's right is absolute and that she
is entitled to terminate her pregnancy at whatever time, in whatever way,
and for whatever reason she alone chooses." Ibid. Instead, this right "must
be considered against important state interests in regulation." Id., at
|||The Court went on to say that the "pregnant woman cannot be isolated in
her privacy," for she "carries an embryo and, later, a fetus." Id., at 159.
It was therefore "reasonable and appropriate for a State to decide that
at some point in time another interest, that of health of the mother or
that of potential human life, becomes significantly involved. The woman's
privacy is no longer sole and any right of privacy she possesses must be
measured accordingly." Ibid. The Court stressed the measure of the State's
interest in "the light of present medical knowledge." Id., at 163. It concluded
that the permissibility of state regulation was to be viewed in three stages:
"For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment
of the pregnant woman's attending physician," without interference from
the State. Id., at 164. The participation by the attending physician in
the abortion decision, and his responsibility in that decision, thus, were
emphasized. After the first stage, as so described, the State may, if it
chooses, reasonably regulate the abortion procedure to preserve and protect
maternal health. Ibid. Finally, for the stage subsequent to viability, a
point purposefully left flexible for professional determination, and dependent
upon developing medical skill and technical ability, *fn1
the State may regulate an abortion to protect the life of the fetus and
even may proscribe abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother.
Id., at 163-165.
|||With the exception specified in n. 2, (infra), we agree with the District
Court that the physician-appellants clearly have standing. This was established
in Doe v. Bolton, 410 U.S., at 188. Like the Georgia statutes challenged
in that case, "he physician is the one against whom [the Missouri Act] directly
operate in the event he procures an abortion that does not meet the statutory
exceptions and conditions. The physician-appellants, therefore, assert a
sufficiently direct threat of personal detriment.They should not be required
to await and undergo a criminal prosecution as the sole means of seeking
relief." *fn2 Ibid.
|||Our primary task, then, is to consider each of the challenged provisions
of the new Missouri abortion statute in the particular light of the opinions
and decisions in Roe and in Doe. To this we now turn, with the assistance
of helpful briefs from both sides and from some of the amici.
|||The definition of viability. Section 2(2) of the Act defines "viability"
as "that stage of fetal development when the life of the unborn child may
be continued indefinitely outside the womb by natural or artificial life-supportive
systems." Appellants claim that this definition violates and conflicts with
the Discussion of viability in our opinion in Roe. 410 U.S., at 160, 163.
In particular, appellants object to the failure of the definition to contain
any reference to a gestational time period, to its failure to incorporate
and reflect the three stages of pregnancy, to the presence of the word "indefinitely,"
and to the extra burden of regulation imposed. It is suggested that the
definition expands the Court's definition of viability, as expressed in
Roe, and amounts to a legislative determination of what is properly a matter
for medical judgment. It is said that the "mere possibility of momentary
survival is not the medical standard of viability." Brief for Appellants
|||In Roe, we used the term "viable," properly we thought, to signify the
point at which the fetus is "potentially able to live outside the mother's
womb, albeit with artificial aid," and presumably capable of "meaningful
life outside the mother's womb," 410 U.S., at 160, 163. We noted that this
point "is usually placed" at about seven months or 28 weeks, but may occur
earlier. Id., at 160.
|||We agree with the District Court and conclude that the definition of viability
in the Act does not conflict with what was said and held in Roe. In fact,
we believe that § 2(2), even when read in conjunction with § 5
(proscribing an abortion "not necessary to preserve the life or health of
the mother... unless the attending physician first certifies with reasonable
medical certainty that the fetus is not viable"), the constitutionality
of which is not explicitly challenged here, reflects an attempt on the part
of the Missouri General Assembly to comply with our observations and Discussion
in Roe relating to viability. Appellant Hall, in his deposition, had no
particular difficulty with the statutory definition. *fn3
As noted above, we recognized in Roe that viability was a matter of medical
judgment, skill, and technical ability, and we preserved the flexibility
of the term. Section 2(2) does the same. Indeed, one might argue, as the
appellees do, that the presence of the statute's words "continued indefinitely"
favor, rather than disfavor, the appellants, for, arguably, the point when
life can be "continued indefinitely outside the womb" may well occur later
in pregnancy than the point where the fetus is "potentially able to live
outside the mother's womb." Roe v. Wade, 410 U.S., at 160.
|||In any event, we agree with the District Court that it is not the proper
function of the legislature or the courts to place viability, which essentially
is a medical concept, at a specific point in the gestation period. The time
when viability is achieved may vary with each pregnancy, and the determination
of whether a particular fetus is viable is, and must be, a matter for the
judgment of the responsible attending physician. The definition of viability
in § 2(2) merely reflects this fact.The appellees do not contend otherwise,
for they insist that the determination of viability rests with the physician
in the exercise of his professional judgment. *fn4
|||We thus do not accept appellants' contention that a specified number of
weeks in pregnancy must be fixed by statute as the point of viability. See
Wolfe v. Schroering, 388 F. Supp. 631, 637 (WD Ky. 1974); Hodgson v. Anderson,
378 F. Supp. 1008, 1016 (Minn. 1974), dismissed for want of jurisdiction
sub nom. Spannaus v. Hodgson, 420 U.S. 903 (1975). *fn5
|||We conclude that the definition in § 2(2) of the Act does not circumvent
the limitations on state regulation outlined in Roe. We therefore hold that
the Act's definition of "viability" comports with Roe and withstands the
constitutional attack made upon it in this litigation.
|||The woman's consent. Under § 3(2) of the Act, a woman, prior to submitting
to an abortion during the first 12 weeks of pregnancy, must certify in writing
her consent to the procedure and "that her consent is informed and freely
given and is not the result of coercion." Appellants argue that this requirement
is violative of Roe v. Wade, 410 U.S., at 164-165, by imposing an extra
layer and burden of regulation on the abortion decision. See Doe v. Bolton,
410 U.S., at 195-200. Appellants also claim that the provision is overbroad
|||The District Court's majority relied on the propositions that the decision
to terminate a pregnancy, of course, "is often a stressful one," and that
the consent requirement of § 3(2) "insures that the pregnant woman
retains control over the discretions of her consulting physician." 392 F.
Supp., at 1368, 1369. The majority also felt that the consent requirement
"does not single out the abortion procedure, but merely includes it within
the category of medical operations for which consent is required." *fn6
Id., at 1369. The third Judge joined the majority in upholding § 3(2),
but added that the written consent requirement was "not burdensome or chilling"
and manifested "a legitimate interest of the state that this important decision
has in fact been made by the person constitutionally empowered to do so."
392 F. Supp., at 1374. He went on to observe that the requirement "in no
way interposes the state or third parties in the decision-making process."
Id., at 1375.
|||We do not disagree with the result reached by the District Court as to
§ 3(2). It is true that Doe and Roe clearly establish that the State
may not restrict the decision of the patient and her physician regarding
abortion during the first stage of pregnancy. Despite the fact that apparently
no other Missouri statute, with the exceptions referred to in n. 6, (supra)
, requires a patient's prior written consent to a surgical procedure, *fn7
the imposition by § 3(2) of such a requirement for termination of pregnancy
even during the first stage, in our view, is not in itself an unconstitutional
requirement. The decision to abort, indeed, is an important, and often a
stressful one, and it is desirable and imperative that it be made with full
knowledge of its nature and consequences. The woman is the one primarily
concerned, and her awareness of the decision and its significance may be
assured, constitutionally, by the State to the extent of requiring her prior
|||We could not say that a requirement imposed by the State that a prior
written consent for any surgery would be unconstitutional. As a consequence,
we see no constitutional defect in requiring it only for some types of surgery
as, for example, an intracardiac procedure, or where the surgical risk is
elevated above a specified mortality level, or, for that matter, for abortions.
|||The spouse's consent. Section 3(3) requires the prior written consent
of the spouse of the woman seeking an abortion during the first 12 weeks
of pregnancy, unless "the abortion is certified by a licensed physician
to be necessary in order to preserve the life of the mother." *fn9
|||The appellees defend § 3(3) on the ground that it was enacted in
the light of the General Assembly's "perception of marriage as an institution,"
Brief for Appellee Danforth 34, and that any major change in family status
is a decision to be made jointly by the marriage partners. Reference is
made to an abortion's possible effect on the woman's childbearing potential.
It is said that marriage always has entailed some legislatively imposed
limitations: Reference is made to adultery and bigamy as criminal offenses;
to Missouri's general requirement, Mo. Rev. Stat. § 453.030.3 (1969),
that for an adoption of a child born in wedlock the consent of both parents
is necessary; to similar joint-consent requirements imposed by a number
of States with respect to artificial insemination and the legitimacy of
children so conceived; to the laws of two States requiring spousal consent
for voluntary sterilization; and to the long-established requirement of
spousal consent for the effective Disposition of an interest in real property.
It is argued that "ecognizing that the consent of both parties is generally
necessary... to begin a family, the legislature has determined that a change
in the family structure set in motion by mutual consent should be terminated
only by mutual consent," Brief for Appellee Danforth 38, and that what the
legislature did was to exercise its inherent policy-making power "for what
was believed to be in the best interests of all the people of Missouri."
Id., at 40.
|||The appellants, on the other hand, contend that § 3(3) obviously
is designed to afford the husband the right unilaterally to prevent or veto
an abortion, whether or not he is the father of the fetus, and that this
not only violates Roe and Doe but is also in conflict with other decided
cases. See, e.g., Poe v. Gerstein, 517 F.2d 787, 794-796 (CA5 1975), appeal
docketed, No. 75-713; Wolfe v. Schroering, 388 F. Supp., at 636-637; Doe
v. Rampton, 366 F. Supp. 189, 193 (Utah 1973). They also refer to the situation
where the husband's consent cannot be obtained because he cannot be located.
And they assert that § 3(3) is vague and overbroad.
|||In Roe and Doe we specifically reserved decision on the question whether
a requirement for consent by the father of the fetus, by the spouse, or
by the parents, or a parent, of an unmarried minor, may be constitutionally
imposed. 410 U.S., at 165 n. 67. We now hold that the State may not constitutionally
require the consent of the spouse, as is specified under § 3(3) of
the Missouri Act, as a condition for abortion during the first 12 weeks
of pregnancy. We thus agree with the Dissenting Judge in the present case,
and with the courts whose decisions are cited above, that the State cannot
"delegate to a spouse a veto power which the state itself is absolutely
and totally prohibited from exercising during the first trimester of pregnancy."
392 F. Supp., at 1375. Clearly, since the State cannot regulate or proscribe
abortion during the first stage, when the physician and his patient make
that decision, the State cannot delegate authority to any particular person,
even the spouse, to prevent abortion during that same period.
|||We are not unaware of the deep and proper concern and interest that a
devoted and protective husband has in his wife's pregnancy and in the growth
and development of the fetus she is carrying. Neither has this Court failed
to appreciate the importance of the marital relationship in our society.
See, e.g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Maynard v.
Hill, 125 U.S. 190, 211 (1888). *fn10
Moreover, we recognize that the decision whether to undergo or to forgo
an abortion may have profound effects on the future of any marriage, effects
that are both physical and mental, and possibly deleterious. Notwithstanding
these factors, we cannot hold that the State has the constitutional authority
to give the spouse unilaterally the ability to prohibit the wife from terminating
her pregnancy, when the State itself lacks that right. See Eisenstadt v.
Baird, 405 U.S. 438, 453 (1972). *fn11
|||It seems manifest that, ideally, the decision to terminate a pregnancy
should be one concurred in by both the wife and her husband. No marriage
may be viewed as harmonious or successful if the marriage partners are fundamentally
divided on so important and vital an issue. But it is difficult to believe
that the goal of fostering mutuality and trust in a marriage, and of strengthening
the marital relationship and the marriage institution, will be achieved
by giving the husband a veto power exercisable for any reason whatsoever
or for no reason at all. Even if the State had the ability to delegate to
the husband a power it itself could not exercise, it is not at all likely
that such action would further, as the District Court majority phrased it,
the "interest of the state in protecting the mutuality of decisions vital
to the marriage relationship." 392 F. Supp., at 1370.
|||We recognize, of course, that when a woman, with the approval of her physician
but without the approval of her husband, decides to terminate her pregnancy,
it could be said that she is acting unilaterally. The obvious fact is that
when the wife and the husband disagree on this decision, the view of only
one of the two marriage partners can prevail. Inasmuch as it is the woman
who physically bears the child and who is the more directly and immediately
affected by the pregnancy, as between the two, the balance weighs in her
favor. Cf. Roe v. Wade, 410 U.S., at 153.
|||We conclude that § 3(3) of the Missouri Act is inconsistent with
the standards enunciated in Roe v. Wade, 410 U.S., at 164-165, and is unconstitutional.
It is therefore unnecessary for us to consider the appellants' additional
challenges to § 3(3) based on vagueness and overbreadth.
|||Parental Consent. Section 3(4) requires, with respect to the first 12
weeks of pregnancy, where the woman is unmarried and under the age of 18
years, the written consent of a parent or person in loco parentis unless,
again, "the abortion is certified by a licensed physician as necessary in
order to preserve the life of the mother." It is to be observed that only
one parent need consent.
|||The appellees defend the statute in several ways. They point out that
the law properly may subject minors to more stringent limitations than are
permissible with respect to adults, and they cite, among other cases, Prince
v. Massachusetts, 321 U.S. 158 (1944), and McKeiver v. Pennsylvania, 403
U.S. 528 (1971). Missouri law, it is said, "is replete with provisions reflecting
the interest of the state in assuring the welfare of minors," citing statutes
relating to a guardian ad litem for a court proceeding, to the care of delinquent
and neglected children, to child labor, and to compulsory education. Brief
for Appellee Danforth 42. Certain decisions are considered by the State
to be outside the scope of a minor's ability to act in his own best interest
or in the interest of the public, citing statutes proscribing the sale of
firearms and deadly weapons to minors without parental consent, and other
statutes relating to minors' exposure to certain types of literature, the
purchase by pawnbrokers of property from minors, and the sale of cigarettes
and alcoholic beverages to minors. It is pointed out that the record contains
testimony to the effect that children of tender years (even ages 10 and
11) have sought abortions. Thus, a State's permitting a child to obtain
an abortion without the counsel of an adult "who has responsibility or concern
for the child would constitute an irresponsible abdication of the State's
duty to protect the welfare of minors." Id., at 44. Parental discretion,
too, has been protected from unwarranted or unreasonable interference from
the State, citing Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society
of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205 (1972).
Finally, it is said that § 3(4) imposes no additional burden on the
physician because even prior to the passage of the Act the physician would
require parental consent before performing an abortion on a minor.
|||The appellants, in their turn, emphasize that no other Missouri statute
specifically requires the additional consent of a minor's parent for medical
or surgical treatment, and that in Missouri a minor legally may consent
to medical services for pregnancy (excluding abortion), venereal disease,
and drug abuse. Mo. Rev. Stat. §§ 431.061-431.063 (Supp. 1975).
The result of § 3(4), it is said, "is the ultimate supremacy of the
parents' desires over those of the minor child, the pregnant patient." Brief
for Appellants 93. It is noted that in Missouri a woman under the age of
18 who marries with parental consent does not require parental consent to
abort, and yet her contemporary who has chosen not to marry must obtain
|||The District Court majority recognized that, in contrast to § 3(3),
the State's interest in protecting the mutuality of a marriage relationship
is not present with respect to § 3(4). It found "a compelling basis,"
however, in the State's interest "in safeguarding the authority of the family
relationship." 392 F. Supp., at 1370. The Dissenting Judge observed that
one could not seriously argue that a minor must submit to an abortion if
her parents insist, and he could not see "why she would not be entitled
to the same right of self-determination now explicitly accorded to adult
women, provided she is sufficiently mature to understand the procedure and
to make an intelligent assessment of her circumstances with the advice of
her physician." Id., at 1376.
|||Of course, much of what has been said above, with respect to § 3(3),
applies with equal force to § 3(4). Other courts that have considered
the parental-consent issue in the light of Roe and Doe, have concluded that
a statute like § 3(4) does not withstand constitutional scrutiny. See,
e.g., Poe v. Gerstein, 517 F.2d, at 792; Wolfe v. Schroering, 388 F. Supp.,
at 636-637; Doe v. Rampton, 366 F. Supp., at 193, 199; State v. Koome, 84
Wash. 2d 901, 530 P. 2d 260 (1975).
|||We agree with appellants and with the courts whose decisions have just
been cited that the State may not impose a blanket provision, such as §
3(4), requiring the consent of a parent or person in loco parentis as a
condition for abortion of an unmarried minor during the first 12 weeks of
her pregnancy. Just as with the requirement of consent from the spouse,
so here, the State does not have the constitutional authority to give a
third party an absolute, and possibly arbitrary, veto over the decision
of the physician and his patient to terminate the patient's pregnancy, regardless
of the reason for withholding the consent.
|||Constitutional rights do not mature and come into being magically only
when one attains the state-defined age of majority. Minors, as well as adults,
are protected by the Constitution and possess constitutional rights. See,
e.g., Breed v. Jones, 421 U.S. 519 (1975); Goss v. Lopez, 419 U.S. 565 (1975);
Tinker v. Des Moines School Dist., 393 U.S. 503 (1969); In re Gault, 387
U.S. 1 (1967). The Court indeed, however, long has recognized that the State
has somewhat broader authority to regulate the activities of children than
of adults. Prince v. Massachusetts, 321 U.S., at 170; Ginsberg v. New York,
390 U.S. 629 (1968). It remains, then, to examine whether there is any significant
state interest in conditioning an abortion on the consent of a parent or
person in loco parentis that is not present in the case of an adult.
|||One suggested interest is the safeguarding of the family unit and of parental
authority. 392 F. Supp., at 1370. It is difficult, however, to conclude
that providing a parent with absolute power to overrule a determination,
made by the physician and his minor patient, to terminate the patient's
pregnancy will serve to strengthen the family unit. Neither is it likely
that such veto power will enhance parental authority or control where the
minor and the non-consenting parent are so fundamentally in conflict and
the very existence of the pregnancy already has fractured the family structure.
Any independent interest the parent may have in the termination of the minor
daughter's pregnancy is no more weighty than the right of privacy of the
competent minor mature enough to have become pregnant.
|||We emphasize that our holding that § 3(4) is invalid does not suggest
that every minor, regardless of age or maturity, may give effective consent
for termination of her pregnancy. See Bellotti v. Baird, post, p. 132. The
fault with § 3(4) is that it imposes a special-consent provision, exercisable
by a person other than the woman and her physician, as a prerequisite to
a minor's termination of her pregnancy and does so without a sufficient
justification for the restriction. It violates the strictures of Roe and
|||Saline amniocentesis. Section 9 of the statute prohibits the use of saline
amniocentesis, as a method or technique of abortion, after the first 12
weeks of pregnancy. It describes the method as one whereby the amniotic
fluid is withdrawn and "a saline or other fluid" is inserted into the amniotic
sac. The statute imposes this proscription on the ground that the technique
"is deleterious to maternal health," and places it in the form of a legislative
finding. Appellants challenge this provision on the ground that it operates
to preclude virtually all abortions after the first trimester. This is so,
it is claimed, because a substantial percentage, in the neighborhood of
70% according to the testimony, of all abortions performed in the United
States after the first trimester are effected through the procedure of saline
amniocentesis. Appellants stress the fact that the alternative methods of
hysterotomy and hysterectomy are significantly more dangerous and critical
for the woman than the saline technique; they also point out that the mortality
rate for normal childbirth exceeds that where saline amniocentesis is employed.
Finally, appellants note that the perhaps safer alternative of prostaglandin
instillation, suggested and strongly relied upon by the appellees, at least
at the time of the trial, is not yet widely used in this country.
|||We held in Roe that after the first stage, "the State, in promoting its
interest in the health of the mother, may, if it chooses, regulate the abortion
procedure in ways that are reasonably related to maternal health." 410 U.S.,
at 164. The question with respect to § 9 therefore is whether the flat
prohibition of saline amniocentesis is a restriction which "reasonably relates
to the preservation and protection of maternal health." Id., at 163. The
appellees urge that what the Missouri General Assembly has done here is
consistent with that guideline and is buttressed by substantial supporting
medical evidence in the record to which this Court should defer.
|||The District Court's majority determined, on the basis of the evidence
before it, that the maternal mortality rate in childbirth does, indeed,
exceed the mortality rate where saline amniocentesis is used. Therefore,
the majority acknowledged, § 9 could be upheld only if there were safe
alternative methods of inducing abortion after the first 12 weeks. 392 F.
Supp., at 1373. Referring to such methods as hysterotomy, hysterectomy,
"mechanical means of inducing abortion," and prostaglandin injection, the
majority said that at least the latter two techniques were safer than saline.
Consequently, the majority concluded, the restriction in § 9 could
be upheld as reasonably related to maternal health.
|||We feel that the majority, in reaching its Conclusion, failed to appreciate
and to consider several significant facts. First, it did not recognize the
prevalence, as the record conclusively demonstrates, of the use of saline
amniocentesis as an accepted medical procedure in this country; the procedure,
as noted above, is employed in a substantial majority (the testimony from
both sides ranges from 68% to 80%) of all post-first-trimester abortions.
Second, it failed to recognize that at the time of trial, there were severe
limitations on the availability of the prostaglandin technique, which, although
promising, was used only on an experimental basis until less than two years
before. See Wolfe v. Schroering, 388 F. Supp., at 637, where it was said
that at that time (1974), "there were no physicians in Kentucky competent
in the technique of prostaglandin amnio infusion." And appellees offered
no evidence that prostaglandin abortions were available in Missouri. *fn12
Third, the statute's reference to the insertion of "a saline or other fluid"
appears to include within its proscription the intra-amniotic injection
of prostaglandin itself and other methods that may be developed in the future
and that may prove highly effective and completely safe. Finally, the majority
did not consider the anomaly inherent in § 9 when it proscribes the
use of saline but does not prohibit techniques that are many times more
likely to result in maternal death. See 392 F. Supp., at 1378 n. 8 (dissenting
|||These unappreciated or overlooked factors place the State's decision to
bar use of the saline method in a completely different light. The State,
through § 9, would prohibit the use of a method which the record shows
is the one most commonly used nationally by physicians after the first trimester
and which is safer, with respect to maternal mortality, than even continuation
of the pregnancy until normal childbirth. Moreover, as a practical matter,
it forces a woman and her physician to terminate her pregnancy by methods
more dangerous to her health than the method outlawed.
|||As so viewed, particularly in the light of the present unavailability
- as demonstrated by the record -- of the prostaglandin technique, the outright
legislative proscription of saline fails as a reasonable regulation for
the protection of maternal health. It comes into focus, instead, as an unreasonable
or arbitrary regulation designed to inhibit, and having the effect of inhibiting,
the vast majority of abortions after the first 12 weeks. As such, it does
not withstand constitutional challenge. See Wolfe v. Schroering, 388 F.
Supp., at 637.
|||Recordkeeping. Sections 10 and 11 of the Act impose recordkeeping requirements
for health facilities and physicians concerned with abortions irrespective
of the pregnancy stage. Under § 10, each such facility and physician
is to be supplied with forms "the purpose and function of which shall be
the preservation of maternal health and life by adding to the sum of medical
knowledge through the compilation of relevant maternal health and life data
and to monitor all abortions performed to assure that they are done only
under and in accordance with the provisions of the law." The statute states
that the information on the forms "shall be confidential and shall be used
only for statistical purposes." The "records, however, may be inspected
and health data acquired by local, state, or national public health officers."
Under § 11 the records are to be kept for seven years in the permanent
files of the health facility where the abortion was performed.
|||Appellants object to these reporting and recordkeeping provisions on the
ground that they, too, impose an extra layer and burden of regulation, and
that they apply throughout all stages of pregnancy. All the Judges of the
District Court panel, however, viewed these provisions as statistical requirements
"essential to the advancement of medical knowledge," and as nothing that
would "restrict either the abortion decision itself or the exercise of medical
judgment in performing an abortion." 392 F. Supp., at 1374.
|||One may concede that there are important and perhaps conflicting interests
affected by recordkeeping requirements. On the one hand, maintenance of
records indeed may be helpful in developing information pertinent to the
preservation of maternal health. On the other hand, as we stated in Roe,
during the first stage of pregnancy the State may impose no restrictions
or regulations governing the medical judgment of the pregnant woman's attending
physician with respect to the termination of her pregnancy. 410 U.S., at
163, 164. Furthermore, it is readily apparent that one reason for the recordkeeping
requirement, namely, to assure that all abortions in Missouri are performed
in accordance with the Act, fades somewhat into insignificance in view of
our holding above as to spousal and parental consent requirements.
|||Recordkeeping and reporting requirements that are reasonably directed
to the preservation of maternal health and that properly respect a patient's
confidentiality and privacy are permissible. This surely is so for the period
after the first stage of pregnancy, for then the State may enact substantive
as well as recordkeeping regulations that are reasonable means of protecting
maternal health. As to the first stage, one may argue forcefully, as the
appellants do, that the State should not be able to impose any recordkeeping
requirements that significantly differ from those imposed with respect to
other, and comparable, medical or surgical procedures. We conclude, however,
that the provisions of §§ 10 and 11, while perhaps approaching
impermissible limits, are not constitutionally offensive in themselves.
Recordkeeping of this kind, if not abused or overdone, can be useful to
the State's interest in protecting the health of its female citizens, and
may be a resource that is relevant to decisions involving medical experience
and judgment. *fn13 The added
requirements for confidentiality, with the sole exception for public health
officers, and for retention for seven years, a period not unreasonable in
length, assist and persuade us in our determination of the constitutional
limits. As so regarded, we see no legally significant impact or consequence
on the abortion decision or on the physician-patient relationship. We naturally
assume, furthermore, that these recordkeeping and record-maintaining provisions
will be interpreted and enforced by Missouri's Division of Health in the
light of our decision with respect to the Act's other provisions, and that,
of course, they will not be utilized in such a way as to accomplish, through
the sheer burden of recordkeeping detail, what we have held to be an otherwise
unconstitutional restriction. Obviously, the State may not require execution
of spousal and parental consent forms that have been invalidated today.
|||Standard of care. Appellee Danforth in No. 74-1419 appeals from the unanimous
decision of the District Court that § 6(1) of the Act is unconstitutional.
That section provides: S
|||"No person who performs or induces an abortion shall fail to exercise
that degree of professional skill, care and diligence to preserve the life
and health of the fetus which such person would be required to exercise
in order to preserve the life and health of any fetus intended to be born
and not aborted. Any physician or person assisting in the abortion who shall
fail to take such measures to encourage or to sustain the life of the child,
and the death of the child results, shall be deemed guilty of manslaughter....
Further, such physician or other person shall be liable in an action for
|||The District Court held that the first sentence was unconstitutionally
overbroad because it failed to exclude from its reach the stage of pregnancy
prior to viability. 392 F. Supp., at 1371.
|||The Attorney General argues that the District Court's interpretation is
erroneous and unnecessary. He claims that the first sentence of § 6(1)
establishes only the general standard of care that applies to the person
who performs the abortion, and that the second sentence describes the circumstances
when that standard of care applies, namely, when a live child results from
the procedure. Thus, the first sentence, it is said, despite its reference
to the fetus, has no application until a live birth results.
|||The appellants, of course, agree with the District Court. They take the
position that § 6(1) imposes its standard of care upon the person performing
the abortion even though the procedure takes place before viability. They
argue that the statute on its face effectively precludes abortion and was
meant to do just that.
|||We see nothing that requires federal-court abstention on this issue. Wisconsin
v. Constantineau, 400 U.S. 433, 437-439 (1971); Kusper v. Pontikes, 414
U.S. 51, 54-55 (1973). And, like the three Judges of the District Court,
we are unable to accept the appellee's sophisticated interpretation of the
statute. Section 6(1) requires the physician to exercise the prescribed
skill, care, and diligence to preserve the life and health of the fetus.
It does not specify that such care need be taken only after the stage of
viability has been reached. As the provision now reads, it impermissibly
requires the physician to preserve the life and health of the fetus, whatever
the stage of pregnancy. The fact that the second sentence of § 6(1)
refers to a criminal penalty where the physician fails "to take such measures
to encourage or to sustain the life of the child, and the death of the child
results" (emphasis supplied), simply does not modify the duty imposed by
the previous sentence or limit that duty to pregnancies that have reached
the stage of viability.
|||The appellees finally argue that if the first sentence of § 6(1)
does not survive constitutional attack, the second sentence does, and, under
the Act's severability provision, § B, is severable from the first.
The District Court's ruling of unconstitutionality, 392 F. Supp., at 1371,
made specific reference to the first sentence, but its Conclusion of law
and its judgment invalidated all of § 6(1). Id., at 1374; Jurisdictional
Statement A-34 in No. 74-1419. Appellee Danforth's motion to alter or amend
the judgment, so far as the second sentence of § 6(1) was concerned,
was denied by the District Court. Id., at A-39.
|||We conclude, as did the District Court, that § 6(1) must stand or
fall as a unit. Its provisions are inextricably bound together. And a physician's
or other person's criminal failure to protect a liveborn infant surely will
be subject to prosecution in Missouri under the State's criminal statutes.
|||The judgment of the District Court is affirmed in part and reversed in
part, and the case is remanded for further proceedings consistent with this
|||It is so ordered.
|||APPENDIX TO OPINION OF THE COURT H. C. S. HOUSE BILL NO. 1211
|||AN ACT relating to abortion with penalty provisions and emergency clause.
|||Be it enacted by the General Assembly of the State of Missouri, as follows:
|||Section 1. It is the intention of the general assembly of the state of
Missouri to reasonably regulate abortion in conformance with the decisions
of the supreme court of the United States.
|||Section 2. Unless the language or context clearly indicates a different
meaning is intended, the following words or phrases for the purpose of this
act shall be given the meaning ascribed to them:
|||(1) "Abortion," the intentional destruction of the life of an embryo or
fetus in his or her mother's womb or the intentional termination of the
pregnancy of a mother with an intention other than to increase the probability
of a live birth or to remove a dead or dying unborn child;
|||(2) "Viability," that stage of fetal development when the life of the
unborn child may be continued indefinitely outside the womb by natural or
artificial lifesupportive systems;
|||(3) "Physician," any person licensed to practice medicine in this state
by the state board of registration of the healing arts.
|||Section 3. No abortion shall be performed prior to the end of the first
twelve weeks of pregnancy except:
|||(1) By a duly licensed, consenting physician in the exercise of his best
clinical medical judgment.
|||(2) After the woman, prior to submitting to the abortion, certifies in
writing her consent to the abortion and that her consent is informed and
freely given and is not the result of coercion.
|||(3) With the written consent of the woman's spouse, unless the abortion
is certified by a licensed physician to be necessary in order to preserve
the life of the mother.
|||(4) With the written consent of one parent or person in loco parentis
of the woman if the woman is unmarried and under the age of eighteen years,
unless the abortion is certified by a licensed physician as necessary in
order to preserve the life of the mother.
|||Section 4. No abortion performed subsequent to the first twelve weeks
of pregnancy shall be performed except where the provisions of section 3
of this act are satisfied and in a hospital.
|||Section 5. No abortion not necessary to preserve the life or health of
the mother shall be performed unless the attending physician first certifies
with reasonable medical certainty that the fetus is not viable.
|||Section 6. (1) No person who performs or induces an abortion shall fail
to exercise that degree of professional skill, care and diligence to preserve
the life and health of the fetus which such person would be required to
exercise in order to preserve the life and health of any fetus intended
to be born and not aborted. Any physician or person assisting in the abortion
who shall fail to take such measures to encourage or to sustain the life
of the child, and the death of the child results, shall be deemed guilty
of manslaughter and upon conviction shall be punished as provided in Section
559.140, RSMo. Further, such physician or other person shall be liable in
an action for damages as provided in Section 537.080, RSMo.
|||(2) Whoever, with intent to do so, shall take the life of a premature
infant aborted alive, shall be guilty of murder of the second degree.
|||(3) No person shall use any fetus or premature infant aborted alive for
any type of scientific, research, laboratory or other kind of experimentation
either prior to or subsequent to any abortion procedure except as necessary
to protect or preserve the life and health of such premature infant aborted
|||Section 7. In every case where a live born infant results from an attempted
abortion which was not performed to save the life or health of the mother,
such infant shall be an abandoned ward of the state under the jurisdiction
of the juvenile court wherein the abortion occurred, and the mother and
father, if he consented to the abortion, of such infant, shall have no parental
rights or obligations whatsoever relating to such infant, as if the parental
rights had been terminated pursuant to section 211.411, RSMo. The attending
physician shall forthwith notify said juvenile court of the existence of
such live born infant.
|||Section 8. Any woman seeking an abortion in the state of Missouri shall
be verbally informed of the provisions of section 7 of this act by the attending
physician and the woman shall certify in writing that she has been so informed.
|||Section 9. The general assembly finds that the method or technique of
abortion known as saline amniocentesis whereby the amniotic fluid is withdrawn
and a saline or other fluid is inserted into the amniotic sac for the purpose
of killing the fetus and artificially inducing labor is deleterious to maternal
health and is hereby prohibited after the first twelve weeks of pregnancy.
|||Section 10. 1. Every health facility and physician shall be supplied with
forms promulgated by the division of health, the purpose and function of
which shall be the preservation of maternal health and life by adding to
the sum of medical knowledge through the compilation of relevant maternal
health and life data and to monitor all abortions performed to assure that
they are done only under and in accordance with the provisions of the law.
|||2. The forms shall be provided by the state division of health.
|||3. All information obtained by physician, hospital, clinic or other health
facility from a patient for the purpose of preparing reports to the division
of health under this section or reports received by the division of health
shall be confidential and shall be used only for statistical purpose. Such
records, however, may be inspected and health data acquired by local, state,
or national public health officers.
|||Section 11. All medical records and other documents required to be kept
shall be maintained in the permanent files of the health facility in which
the abortion was performed for a period of seven years.
|||Section 12. Any practitioner of medicine, surgery, or nursing, or other
health personnel who shall willfully and knowingly do or assist any action
made unlawful by this act shall be subject to having his license, application
for license, or authority to practice his profession as a physician, surgeon,
or nurse in the state of Missouri rejected or revoked by the appropriate
state licensing board.
|||Section 13. Any physician or other person who fails to maintain the confidentiality
of any records or reports required under this act is guilty of a misdemeanor
and, upon conviction, shall be punished as provided by law.
|||Section 14. Any person who contrary to the provisions of this act knowingly
performs or aids in the performance of any abortion or knowingly fails to
perform any action required by this act shall be guilty of a misdemeanor
and, upon conviction, shall be punished as provided by law.
|||Section 15. Any person who is not a licensed physician as defined in section
2 of this act who performs or attempts to perform an abortion on another
as defined in subdivision (1) of section 2 of this act, is guilty of a felony,
and upon conviction, shall be imprisoned by the department of corrections
for a term of not less than two years nor more than seventeen years.
|||Section 16. Nothing in this act shall be construed to exempt any person,
firm, or corporation from civil liability for medical malpractice for negligent
acts or certification under this act.
|||Section A. Because of the necessity for immediate state action to regulate
abortions to protect the lives and health of citizens of this state, this
act is deemed necessary for the immediate preservation of the public health,
welfare, peace and safety, and is hereby declared to be an emergency act
within the meaning of the constitution, and this act shall be in full force
and effect upon its passage and approval.
|||Section B. If any provision of this Act or the application thereof to
any person or circumstance shall be held invalid, such invalidity does not
affect the provisions or application of this Act which can be given effect
without the invalid provisions or applications, and to this end the provisions
of this Act are declared to be severable.
|||Approved June 14, 1974.
|||Effective June 14, 1974.
|||JUSTICE STEWART, with whom MR. JUSTICE POWELL joins, Concurring.
|||While joining the Court's opinion, I write separately to indicate my understanding
of some of the constitutional issues raised by this litigation.
|||With respect to the definition of viability in § 2 (2) of the Act,
it seems to me that the critical consideration is that the statutory definition
has almost no operative significance. The State has merely required physicians
performing abortions to certify that the fetus to be aborted is not viable.
While the physician may be punished for failing to issue a certification,
he may not be punished for erroneously concluding that the fetus is not
viable. There is thus little chance that a physician's professional decision
to perform an abortion will be "chilled."
|||I agree with the Court that the patient-consent provision in § 3
(2) is constitutional. While § 3 (2) obviously regulates the abortion
decision during all stages of pregnancy, including the first trimester,
I do not believe it conflicts with the statement in Roe v. Wade, 410 U.S.
113, 163, that "for the period of pregnancy prior to [approximately the
end of the first trimester] the attending physician, in consultation with
his patient, is free to determine, without regulation by the State, that,
in his medical judgment, the patient's pregnancy should be terminated. If
that decision is reached, the judgment may be effectuated by an abortion
free of interference by the State." That statement was made in the context
of invalidating a state law aimed at thwarting a woman's decision to have
an abortion. It was not intended to preclude the State from enacting a provision
aimed at ensuring that the abortion decision is made in a knowing, intelligent,
and voluntary fashion.
|||As to the provision of the law that requires a husband's consent to an
abortion, § 3 (3), the primary issue that it raises is whether the
State may constitutionally recognize and give effect to a right on his part
to participate in the decision to abort a jointly conceived child. This
seems to me a rather more difficult problem than the Court acknowledges.
Previous decisions have recognized that a man's right to father children
and enjoy the association of his offspring is a constitutionally protected
freedom. See Stanley v. Illinois, 405 U.S. 645; Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535. But the Court has recognized as well that the
Constitution protects "a woman's decision whether or not to terminate her
pregnancy." Roe v. Wade, supra, at 153 (emphasis added). In assessing the
constitutional validity of § 3 (3) we are called upon to choose between
these competing rights. I agree with the Court that since "it is the woman
who physically bears the child and who is the more directly and immediately
affected by the pregnancy... the balance weighs in her favor." Ante, at
|||With respect to the state law's requirement of parental consent, §
3 (4), I think it clear that its primary constitutional deficiency lies
in its imposition of an absolute limitation on the minor's right to obtain
an abortion. The Court's opinion today in Bellotti v. Baird, post, at 147-148,
suggests that a materially different constitutional issue would be presented
under a provision requiring parental consent or consultation in most cases
but providing for prompt (i) judicial resolution of any disagreement between
the parent and the minor, or (ii) judicial determination that the minor
is mature enough to give an informed consent without parental concurrence
or that abortion in any event is in the minor's best interest. Such a provision
would not impose parental approval as an absolute condition upon the minor's
right but would assure in most instances consultation between the parent
and child. *fn1
|||There can be little doubt that the State furthers a constitutionally permissible
end by encouraging an unmarried pregnant minor to seek the help and advice
of her parents in making the very important decision whether or not to bear
a child. That is a grave decision, and a girl of tender years, under emotional
stress, may be ill-equipped to make it without mature advice and emotional
support. It seems unlikely that she will obtain adequate counsel and support
from the attending physician at an abortion clinic, where abortions for
pregnant minors frequently take place. *fn2
|||As to the constitutional validity of § 9 of the Act, prohibiting
the use of the saline amniocentesis procedure, I agree fully with the views
expressed by MR. JUSTICE STEVENS.
|||JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join,
Concurring in part and Dissenting in part.
|||In Roe v. Wade, 410 U.S. 113 (1973), this Court recognized a right to
an abortion free from state prohibition. The task of policing this limitation
on state police power is and will be a difficult and continuing venture
in substantive due process. However, even accepting Roe v. Wade, there is
nothing in the opinion in that case and nothing articulated in the Court's
opinion in this case which justifies the invalidation of four provisions
of House Committee Substitute for House Bill No. 1211 (hereafter Act) enacted
by the Missouri 77th General Assembly in 1974 in response to Roe v. Wade.
Accordingly, I Dissent, in part.
|||Roe v. Wade, supra, at 163, holds that until a fetus becomes viable, the
interest of the State in the life or potential life it represents is outweighed
by the interest of the mother in choosing "whether or not to terminate her
pregnancy." 410 U.S., at 153. Section 3 (3) of the Act provides that a married
woman may not obtain an abortion without her husband's consent. The Court
strikes down this statute in one sentence. It says that "since the State
cannot... proscribe abortion... the State cannot delegate authority to any
particular person, even the spouse, to prevent abortion...." Ante, at 69.
But the State is not -- under § 3 (3) -- delegating to the husband
the power to vindicate the State's interest in the future life of the fetus.
It is instead recognizing that the husband has an interest of his own in
the life of the fetus which should not be extinguished by the unilateral
decision of the wife. *fn1 It by
no means follows, from the fact that the mother's interest in deciding "whether
or not to terminate her pregnancy" outweighs the State's interest in the
potential life of the fetus, that the husband's interest is also outweighed
and may not be protected by the State. A father's interest in having a child
-- perhaps his only child - may be unmatched by any other interest in his
life. See Stanley v. Illinois, 405 U.S. 645, 651 (1972), and cases there
cited. It is truly surprising that the majority finds in the United States
Constitution, as it must in order to justify the result it reaches, a rule
that the State must assign a greater value to a mother's decision to cut
off a potential human life by abortion than to a father's decision to let
it mature into a live child. Such a rule cannot be found there, nor can
it be found in Roe v. Wade, supra. These are matters which a State should
be able to decide free from the suffocating power of the federal Judge,
purporting to act in the name of the Constitution.
|||In describing the nature of a mother's interest in termininating a pregnancy,
the Court in Roe v. Wade mentioned only the post-birth burdens of rearing
a child, 410 U.S., at 153, and rejected a rule based on her interest in
controlling her own body during pregnancy. Id., at 154. Missouri has a law
which prevents a woman from putting a child up for adoption over her husband's
objection, Mo. Rev. Stat. § 453.030 (1969). This law represents a judgment
by the State that the mother's interest in avoiding the burdens of child
rearing do not outweigh or snuff out the father's interest in participating
in bringing up his own child. That law is plainly valid, but no more so
than § 3 (3) of the Act now before us, resting as it does on precisely
the same judgment.
|||Section 3 (4) requires that an unmarried woman under 18 years of age obtain
the consent of a parent or a person in loco parentis as a condition to an
abortion. Once again the Court strikes the provision down in a sentence.
It states: "Just as with the requirement of consent from the spouse, so
here, the State does not have the constitutional authority to give a third
party an absolute, and possibly arbitrary, veto over the decision of the
physician and his patient to terminate the patient's pregnancy...." Ante,
at 74. The Court rejects the notions that the State has an interest in strengthening
the family unit, or that the parent has an "independent interest" in the
abortion decision, sufficient to justify § 3 (4) and apparently concludes
that the provision is therefore unconstitutional. But the purpose of the
parental-consent requirement is not merely to vindicate any interest of
the parent or of the State. The purpose of the requirement is to vindicate
the very right created in Roe v. Wade, (supra) -- the right of the pregnant
woman to decide "whether or not to terminate her pregnancy." 410 U.S., at
153 (emphasis added). The abortion decision is unquestionably important
and has irrevocable consequences whichever way it is made. Missouri is entitled
to protect the minor unmarried woman from making the decision in a way which
is not in her own best interests, and it seeks to achieve this goal by requiring
parental consultation and consent. This is the traditional way by which
States have sought to protect children from their own immature and improvident
decisions; *fn2 and there is absolutely
no reason expressed by the majority why the State may not utilize that method
|||Section 9 of the Act prohibits abortion by the method known as saline
amniocentesis -- a method used at the time the Act was passed for 70% of
abortions performed after the first trimester. Legislative history reveals
that the Missouri Legislature viewed saline amniocentesis as far less safe
a method of abortion than the so-called prostaglandin method. The court
below took evidence on the question and summarized it as follows: S
|||"The record of trial discloses that use of the saline method exposes a
woman to the danger of severe complications, regardless of the skill of
the physician or the precaution taken. Saline may cause one or more of the
following conditions: Disseminated intravascular coagulation or 'consumptive
coagulapathy' (disruption of the blood clotting mechanism [Dr. Warren, Tr.
57-58; Dr. Klaus, Tr. 269-270; Dr. Anderson, Tr. 307; Defts' Exs. H & M]),
which may result in severe bleeding and possibly death (Dr. Warren, Tr.
58); hypernatremia (increase in blood sodium level), which may lead to convulsions
and death (Dr. Klaus, Tr. 268); and water intoxication (accumulated water
in the body tissue which may occur when oxytoxin is used in conjunction
with the injection of saline), resulting in damage to the central nervous
system or death (Dr. Warren, Tr. 76; Dr. Klaus, Tr. 270-271; Dr. Anderson,
Tr. 310; Defts' Ex. L). There is also evidence that saline amniocentesis
causes massive tissue destruction to the inside of the uterus (Dr. Anderson,
Tr. 308)." 392 F.Supp. 1362, 1372-1373 (1975).I
|||The District Court also cited considerable evidence establishing that
the prostaglandin method is safer. In fact, the Chief of Obstetrics at Yale
University, Dr. Anderson, suggested that "physicians should be liable for
malpractice if they chose saline over prostaglandin after having been given
all the facts on both methods." Id., at 1373. The Court nevertheless reverses
the decision of the District Court sustaining § 9 against constitutional
challenge. It does so apparently because saline amniocentesis was widely
used before the Act was passed; because the prostaglandin method was seldom
used and was not generally available; and because other abortion techniques
more dangerous than saline amniocentesis were not banned. At bottom the
majority's holding -- as well as the concurrence -- rests on its factual
finding that the prostaglandin method is unavailable to the women of Missouri.
It therefore concludes that the ban on the saline method is "an unreasonable
or arbitrary regulation designed to inhibit, and having the effect of inhibiting,
the vast majority of abortions after the first 12 weeks," ante, at 79. This
factual finding was not made either by the majority or by the Dissenting
Judge below. Appellants have not argued that the record below supports such
a finding. In fact the record below does not support such a finding. There
is no evidence in the record that women in Missouri will be unable to obtain
abortions by the prostaglandin method. What evidence there is in the record
on this question supports the contrary Conclusion. *fn3
The record discloses that the prostaglandin method of abortion was the country's
second most common method of abortion during the second trimester, Tr. 42,
89-90; that although the prostaglandin method had previously been available
only on an experimental basis, it was, at the time of trial available in
"small hospitals all over the country," id., at 342; that in another year
or so the prostaglandin method would become -- even in the absence of legislation
on the subject - the most prevalent method. Anderson deposition, at 69.
Moreover, one doctor quite sensibly testified that if the saline method
were banned, hospitals would quickly switch to the prostaglandin method.
|||The majority relies on the testimony of one doctor that -- as already
noted -- prostaglandin had been available on an experimental basis only
until January 1, 1974; and that its manufacturer, the Upjohn Co., restricted
its sales to large medical centers for the following six months, after which
sales were to be unrestricted. Tr. 334-335. In what manner this evidence
supports the proposition that prostaglandin is unavailable to the women
of Missouri escapes me. The statute involved in this litigation was passed
on June 14, 1974; evidence was taken in July 1974; the District Court's
decree sustaining the ban on the saline method which this Court overturns
was entered in January 1975; and this Court declares the statute unconstitutional
in July 1976. There is simply no evidence in the record that prostaglandin
was or is unavailable at any time relevant to this case. Without such evidence
and without any factual finding by the court below this Court cannot properly
strike down a statute passed by one of the States. Of course, there is no
burden on a State to establish the constitutionality of one of its laws.
Absent proof of a fact essential to its unconstitutionality, the statute
remains in effect.
|||The only other basis for its factual finding which the majority offers
is a citation to another case -- Wolfe v. Schroering, 388 F. Supp. 631,
637 (WD Ky. 1974) -- in which a different court concluded that the record
in its case showed the prostaglandin method to be unavailable in another
State -- Kentucky -- at another time - two years ago. This case must be
decided on its own record. I am not yet prepared to accept the notion that
normal rules of law, procedure, and constitutional adjudication suddenly
become irrelevant solely because a case touches on the subject of abortion.
The majority's finding of fact that women in Missouri will be unable to
obtain abortions after the first trimester if the saline method is banned
is wholly unjustifiable.
|||In any event, the point of § 9 is to change the practice under which
most abortions were performed under the saline amniocentesis method and
to make the safer prostaglandin method generally available. It promises
to achieve that result, if it remains operative, and the evidence discloses
that the result is a desirable one or at least that the legislature could
have so viewed it. That should end our inquiry, unless we purport to be
not only the country's continuous constitutional convention but also its
ex officio medical board with powers to approve or disapprove medical and
operative practices and standards throughout the United States.
|||Section 6(1) of the Act provides: S
|||"No person who performs or induces an abortion shall fail to exercise
that degree of professional skill, care and diligence to preserve the life
and health of the fetus which such person would be required to exercise
in order to preserve the life and health of any fetus intended to be born
and not aborted. Any physician or person assisting in the abortion who shall
fail to take such measures to encourage or to sustain the life of the child,
and the death of the child results, shall be deemed guilty of manslaughter....
Further, such physician or other person shall be liable in an action for
|||If this section is read in any way other than through a microscope, it
is plainly intended to require that, where a "fetus [may have] the capability
of meaningful life outside the mother's womb," Roe v. Wade, 410 U.S., at
163, the abortion be handled in a way which is designed to preserve that
life notwithstanding the mother's desire to terminate it. Indeed, even looked
at through a microscope the statute seems to go no further. It requires
a physician to exercise "that degree of professional skill... to preserve
the... fetus," which he would be required to exercise if the mother wanted
a live child. Plainly, if the pregnancy is to be terminated at a time when
there is no chance of life outside the womb, a physician would not be required
to exercise any care or skill to preserve the life of the fetus during abortion
no matter what the mother's desires. The statute would appear then to operate
only in the gray area after the fetus might be viable but while the physician
is still able to certify "with reasonable medical certainty that the fetus
is not viable." See § 5 of the Act which flatly prohibits abortions
absent such a certification. Since the State has a compelling interest,
sufficient to outweigh the mother's desire to kill the fetus, when the "fetus...
has the capability of meaningful life outside the mother's womb," Roe v.
Wade, supra, at 163, the statute is constitutional.
|||Incredibly, the Court reads the statute instead to require "the physician
to preserve the life and health of the fetus, whatever the stage of pregnancy,"
ante, at 83, thereby attributing to the Missouri Legislature the strange
intention of passing a statute with absolutely no chance of surviving constitutional
challenge under Roe v. Wade, supra.
|||The Court compounds its error by also striking down as unseverable the
wholly unobjectionable requirement in the second sentence of § 6(1)
that where an abortion produces a live child, steps must be taken to sustain
its life. It explains its result in two sentences: S
|||"We conclude, as did the District Court, that § 6(1) must stand or
fall as a unit. Its provisions are inextricably bound together." Ante, at
|||The question whether a constitutional provision of state law is severable
from an unconstitutional provision is entirely a question of the intent
of the state legislature. There is not the slightest reason to suppose that
the Missouri Legislature would not require proper care for live babies just
because it cannot require physicians performing abortions to take care to
preserve the life of fetuses. The Attorney General of Missouri has argued
here that the only intent of § 6(1) was to require physicians to support
a live baby which resulted from an abortion.
|||At worst, § 6(1) is ambiguous on both points and the District Court
should be directed to abstain until a construction may be had from the state
courts. Under no circumstances should § 6(1) be declared unconstitutional
at this point. *fn4
|||I join the judgment and opinion of the Court insofar as it upholds the
other portions of the Act against constitutional challenge.
|||JUSTICE STEVENS, Concurring in part and Dissenting in part.
|||With the exception of Parts IV-D and IV-E, I join the Court's opinion.
|||In Roe v. Wade, 410 U.S. 113, the Court held that a woman's right to decide
whether to abort a pregnancy is entitled to constitutional protection. That
decision, which is now part of our law, answers the question discussed in
Part IV-E of the Court's opinion, but merely poses the question decided
in Part IV-D.
|||If two abortion procedures had been equally accessible to Missouri women,
in my judgment the United States Constitution would not prevent the state
legislature from outlawing the one it found to be less safe even though
its Conclusion might not reflect a unanimous consensus of informed medical
opinion. However, the record indicates that when the Missouri statute was
enacted, a prohibition of the saline amniocentesis procedure was almost
tantamount to a prohibition of any abortion in the State after the first
12 weeks of pregnancy. Such a prohibition is inconsistent with the essential
holding of Roe v. Wade and therefore cannot stand.
|||In my opinion, however, the parental-consent requirement is consistent
with the holding in Roe. The State's interest in the welfare of its young
citizens justifies a variety of protective measures. Because he may not
foresee the consequences of his decision, a minor may not make an enforceable
bargain. He may not lawfully work or travel where he pleases, or even attend
exhibitions of constitutionally protected adult motion pictures. Persons
below a certain age may not marry without parental consent. Indeed, such
consent is essential even when the young woman is already pregnant. The
State's interest in protecting a young person from harm justifies the imposition
of restraints on his or her freedom even though comparable restraints on
adults would be constitutionally impermissible. Therefore, the holding in
Roe v. Wade that the abortion decision is entitled to constitutional protection
merely emphasizes the importance of the decision; it does not lead to the
Conclusion that the state legislature has no power to enact legislation
for the purpose of protecting a young pregnant woman from the consequences
of an incorrect decision.
|||The abortion decision is, of course, more important than the decision
to attend or to avoid an adult motion picture, or the decision to work long
hours in a factory. It is not necessarily any more important than the decision
to run away from home or the decision to marry. But even if it is the most
important kind of a decision a young person may ever make, that assumption
merely enhances the quality of the State's interest in maximizing the probability
that the decision be made correctly and with full understanding of the consequences
of either alternative.
|||The Court recognizes that the State may insist that the decision not be
made without the benefit of medical advice. But since the most significant
consequences of the decision are not medical in character, it would seem
to me that the State may, with equal legitimacy, insist that the decision
be made only after other appropriate counsel has been had as well. Whatever
choice a pregnant young woman makes -- to marry, to abort, to bear her child
out of wedlock - the consequences of her decision may have a profound impact
on her entire future life. A legislative determination that such a choice
will be made more wisely in most cases if the advice and moral support of
a parent play a part in the decisionmaking process is surely not irrational.
Moreover, it is perfectly clear that the parental-consent requirement will
necessarily involve a parent in the decisional process.
|||If there is no parental-consent requirement, many minors will submit to
the abortion procedure without ever informing their parents. An assumption
that the parental reaction will be hostile, disparaging, or violent no doubt
persuades many children simply to bypass parental counsel which would in
fact be loving, supportive, and, indeed, for some indispensable. It is unrealistic,
in my judgment, to assume that every parent-child relationship is either
(a) so perfect that communication and accord will take place routinely or
(b) so imperfect that the absence of communication reflects the child's
correct prediction that the parent will exercise his or her veto arbitrarily
to further a selfish interest rather than the child's interest. A state
legislature may conclude that most parents will be primarily interested
in the welfare of their children, and further, that the imposition of a
parental-consent requirement is an appropriate method of giving the parents
an opportunity to foster that welfare by helping a pregnant distressed child
to make and to implement a correct decision.
|||The State's interest is not dependent on an estimate of the impact the
parental-consent requirement may have on the total number of abortions that
may take place. I assume that parents will sometimes prevent abortions which
might better be performed; other parents may advise abortions that should
not be performed. Similarly, even doctors are not omniscient; specialists
in performing abortions may incorrectly conclude that the immediate advantages
of the procedure outweigh the disadvantages which a parent could evaluate
in better perspective. In each individual case factors much more profound
than a mere medical judgment may weigh heavily in the scales. The overriding
consideration is that the right to make the choice be exercised as wisely
|||The Court assumes that parental consent is an appropriate requirement
if the minor is not capable of understanding the procedure and of appreciating
its consequences and those of available alternatives. This assumption is,
of course, correct and consistent with the predicate which underlies all
state legislation seeking to protect minors from the consequences of decisions
they are not yet prepared to make. In all such situations chronological
age has been the basis for imposition of a restraint on the minor's freedom
of choice even though it is perfectly obvious that such a yardstick is imprecise
and perhaps even unjust in particular cases. The Court seems to assume that
the capacity to conceive a child and the judgment of the physician are the
only constitutionally permissible yardsticks for determining whether a young
woman can independently make the abortion decision. I doubt the accuracy
of the Court's empirical judgment. Even if it were correct, however, as
a matter of constitutional law I think a State has power to conclude otherwise
and to select a chronological age as its standard.
|||In short, the State's interest in the welfare of its young citizens is
sufficient, in my judgment, to support the parental-consent requirement.
|||* Together with No. 74-1419, Danforth, Attorney General of Missouri v.
Planned Parenthood of Central Missouri et al., also on appeal from the same
|||* Rhonda Copelon and Nancy Stearns filed a brief in both cases for the
Center for Constitutional Rights et al. as amici curiae urging reversal
in No. 74-1151.
|||Briefs of amici curiae were filed in both cases by Eugene Krasicky, George
E. Reed, and Patrick F. Geary for the United States Catholic Conference;
and by Harriet F. Pilpel for Planned Parenthood Federation of America, Inc.,
et al. Briefs of amici curiae were filed in No. 74-1151 by John J. Donnelly
for Lawyers for Life, Inc., et al., and by Jerome M. McLaughlin for Missouri
Nurses for Life.
|||*fn1 "Viability is usually placed
at about seven months (28 weeks) but may occur earlier, even at 24 weeks."
Roe v. Wade, 410 U.S., at 160.
|||*fn2 This is not so, however,
with respect to § 7 of the Act pertaining to state wardship of a live-born
infant. Section 7 applies "where a live born infant results from an attempted
abortion which was not performed to save the life or health of the mother."
It then provides that the infant "shall be an abandoned ward of the state"
and that the mother - and the father, too, if he consented to the abortion
-- "shall have no parental rights or obligations whatsoever relating to
|||The physician-appellants do not contend that this section of the Act imposes
any obligation on them or that its operation otherwise injures them in fact.
They do not claim any interest in the question of who receives custody that
is "sufficiently concrete" to satisfy the "case or controversy" requirement
of a federal court's Art. III jurisdiction. Singleton v. Wulff, post, at
112. Accordingly, the physician-appellants do not have standing to challenge
§ 7 of the Act.
|||The District Court did not decide whether Planned Parenthood has standing
to challenge the Act, or any portion of it, because of its view that the
physician-appellants have standing to challenge the entire Act. 392 F.Supp.
1362, 1366-1367 (1975). We decline to consider here the standing of Planned
Parenthood to attack § 7.That question appropriately may be left to
the District Court for reconsideration on remand. As a consequence, we do
not decide the issue of § 7's constitutionality.
|||*fn3 "lthough I agree with the
definition of 'viability,' I think that it must be understood that viability
is a very difficult state to assess." Tr. 369.
|||*fn4 "The determination of when
the fetus is viable rests, as it should, with the physician, in the exercise
of his medical judgment, on a case-by-case basis." Brief for Appellee Danforth
26. "Because viability may vary from patient to patient and with advancements
in medical technology, it is essential that physicians make the determination
in the exercise of their medical judgment." Id., at 28. "Defendant agrees
that 'viability' will vary, that it is a difficult state to assess... and
that it must be left to the physician's judgment." Id., at 29.
|||*fn5 The Minnesota statute under
attack in Hodgson provided that a fetus "shall be considered potentially
'viable'" during the second half of its gestation period. Noting that the
defendants had presented no evidence of viability at 20 weeks, the three-Judge
District Court held that that definition of viability was "unreasonable
and cannot stand." 378 F. Supp., at 1016.
|||*fn6 Apparently, however, the
only other Missouri statutes concerned with consent for general medical
or surgical care relate to persons committed to the Missouri State chest
hospital, Mo. Rev. Stat. § 199.240 (Supp. 1975), or to mental or correctional
institutions, § 105.700 (1969).
|||*fn7 There is some testimony
in the record to the effect that taking from the patient a prior written
consent to surgery is the custom. That may be so in some areas of Missouri,
but we definitely refrain from characterizing it extremely as "the universal
practice of the medical profession," as the appellees do. Brief for Appellee
|||*fn8 The appellants' vagueness
argument centers on the word "informed." One might well wonder, offhand,
just what "informed consent" of a patient is. The three Missouri federal
Judges who composed the three-Judge District Court, however, were not concerned,
and we are content to accept, as the meaning, the giving of information
to the patient as to just what would be done and as to its consequences.
To ascribe more meaning than this might well confine the attending physician
in an undesired and uncomfortable straitjacket in the practice of his profession.
|||*fn9 It is of some interest to
note that the condition does not relate, as most statutory conditions in
this area do, to the preservation of the life or health of the mother.
|||*fn10 "We deal with a right
of privacy older than the Bill of Rights - older than our political parties,
older than our school system. Marriage is a coming together for better or
for worse, hopefully enduring, and intimate to the degree of being sacred.
It is an association that promotes a way of life, not causes; a harmony
in living, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as any
involved in our prior decisions." Griswold v. Connecticut, 381 U.S., at
|||*fn11 As the Court recognized
in Eisenstadt v. Baird, "the marital couple is not an independent entity
with a mind and heart of its own, but an association of two individuals
each with a separate intellectual and emotional makeup. If the right of
privacy means anything, it is the right of the individual, married or single,
to be free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child." 405
U.S., at 453 (emphasis in original).
|||The Dissenting opinion of our Brother WHITE appears to overlook the implications
of this statement upon the issue whether § 3(3) is constitutional.
This section does much more than insure that the husband participate in
the decision whether his wife should have an abortion. The State, instead,
has determined that the husband's interest in continuing the pregnancy of
his wife always outweighs any interest on her part in terminating it irrespective
of the condition of their marriage. The State, accordingly, has granted
him the right to prevent unilaterally, and for whatever reason, the effectuation
of his wife's and her physician's decision to terminate her pregnancy. This
state determination not only may discourage the consultation that might
normally be expected to precede a major decision affecting the marital couple
but also, and more importantly, the State has interposed an absolute obstacle
to a woman's decision that Roe held to be constitutionally protected from
|||*fn12 In response to MR. JUSTICE
WHITE'S criticism that the prostaglandin method of inducing abortion was
available in Missouri, either at the time the Act was passed or at the time
of trial, we make the following observations. First, there is no evidence
in the record to which our Brother has pointed that demonstrates that the
prostaglandin method was or is available in Missouri. Second, the evidence
presented to the District Court does not support such a view. Until January
1974 prostaglandin was used only on an experimental basis in a few medical
centers. And, at the time the Missouri General Assembly proscribed saline,
the sole distributor of prostaglandin "restricted sales to around twenty
medical centers from coast to coast." Brief for Appellee Danforth 68.
|||It is clear, therefore, that at the time the Missouri General Assembly
passed the Act, prostaglandin was not available, in any meaningful sense
of that term. Because of this undisputed fact, it was incumbent upon appellees
to show that at the time of trial in 1974 prostaglandin was available. They
failed to do so. Indeed, appellees' expert witness, on whose testimony the
Dissenting opinion relies, does not fill this void. He was able to state
only that prostaglandin was used in a limited way until shortly before trial
and that he "would think" that it was more readily available at the time
of trial. Tr. 335. Such an experimental and limited use of prostaglandin
throughout the country does not make it available or accessible to concerned
persons in Missouri.
|||*fn13 We note that in Missouri
physicians must participate in the reporting of births and deaths, Mo. Rev.
Stat. §§ 193.100 and 193.140 (1969), and communicable diseases,
§§ 192.020 and 192.040 (1969), and that their use of controlled
substances is rigidly monitored by the State, §§ 195.010-195.545
(1969 and Supp. 1975).
|||1 For some of the considerations that support the State's interest in
encouraging parental consent, see the opinion of MR. JUSTICE STEVENS, Concurring
in part and Dissenting in part. Post, at 102-105.
|||2 The mode of operation of one such clinic is revealed by the record in
Bellotti v. Baird, post, p. 132, and accurately described by appellants
in that case:
|||"The counseling... occurs entirely on the day the abortion is to be performed....
It lasts for two hours and takes place in groups that include both minors
and adults who are strangers to one another.... The physician takes no part
in this counseling process.... Counseling is typically limited to a description
of abortion procedures, possible complications, and birth control techniques....
|||"The abortion itself takes five to seven minutes.... The physician has
no prior contact with the minor, and on the days that abortions are being
performed at the , the physician,... may be performing abortions on many
other adults and minors.... On busy days patients are scheduled in separate
groups, consisting usually of five patients.... After the abortion [the
physician] spends a brief period with the minor and others in the group
in the recovery room...." Brief for Appellants in No. 75-73, O.T. 1975,
|||1 There are countless situations in which the State prohibits conduct
only when it is objected to by a private person most closely affected by
it. Thus a State cannot forbid anyone to enter on private property with
the owner's consent, but it may enact and enforce trespass laws against
unauthorized entrances. It cannot forbid transfer of property held in tenancy
by the entireties but it may require consent by both husband and wife to
such a transfer. These situations plainly do not involve delegations of
legislative power to private parties; and neither does the requirement in
§ 3 (3) that a woman not deprive her husband of his future child without
|||2 As MR. JUSTICE STEVENS states in his separate opinion, post, at 102:
|||The State's interest in the welfare of its young citizens justifies a
variety of protective measures. Because he may not foresee the consequences
of his decision, a minor may not make an enforceable bargain. He may not
lawfully work or travel where he pleases, or even attend exhibitions of
constitutionally protected adult motion pictures. Persons below a certain
age may not marry without parental consent. Indeed, such consent is essential
even when the young woman is already pregnant."
|||3 The absence of more evidence on the subject in the record seems to be
a result of the fact that the claim that the prostaglandin method is unavailable
was not part of plaintiffs' litigating strategy below.
|||4 The majority's construction of state law is, of course, not binding
on the Missouri courts. If they should disagree with the majority's reading
of state law on one or both of the points treated by the majority, the State
could validly enforce the relevant parts of the statute -- at least against
all those people not parties to this case. Cf. Dombrowski v. Pfister, 380
U.S. 479, 492 (1965).
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