| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 88-605 |
| [3] | 1989.SCT.3283 <http://www.versuslaw.com>,
492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410, 57 U.S.L.W. 5023 |
| [4] | July 3, 1989 |
| [5] | WEBSTER, ATTORNEY GENERAL OF MISSOURI, ET AL. v. REPRODUCTIVE HEALTH SERVICES ET AL. |
| [6] | APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. |
| [7] | William L. Webster, Attorney General of Missouri, pro se, argued the cause
for appellants. With him on the briefs were Michael L. Boicourt and Jerry
L. Short, Assistant Attorneys General. |
| [8] | Charles Fried argued the cause for the United States as amicus curiae
urging reversal. On the brief were Acting Solicitor General Bryson, Assistant
Attorney General Bolton, Deputy Solicitor General Merrill, Roger Clegg,
Steven R. Valentine, and Michael K. Kellogg. |
| [9] | Frank Susman argued the cause for appellees. With him on the brief were
Roger K. Evans, Dara Klassel, Barbara E. Otten, Thomas M. Blumenthal, and
Janet Benshoof.* |
| [10] | Rehnquist, C. J., announced the judgment of the Court and delivered the
opinion for a unanimous Court with respect to Part II-C, the opinion of
the Court with respect to Parts I, II-A, and II-B, in which White, O'Connor,
Scalia, and Kennedy, JJ., joined, and an opinion with respect to Parts II-D
and III, in which White and Kennedy, JJ., joined. O'Connor, J., post, p.
522, and Scalia, J., post, p. 532, filed opinions Concurring in part and
Concurring in the judgment. Blackmun, J., filed an opinion Concurring in
part and Dissenting in part, in which Brennan and Marshall, JJ., joined,
post, p. 537. Stevens, J., filed an opinion Concurring in part and Dissenting
in part, post, p. 560. |
| [11] | The opinion of the court was delivered by: Rehnquist |
| [12] | Appellees, state-employed health professionals and private nonprofit corporations
providing abortion services, brought suit in the District Court for declaratory
and injunctive relief challenging the constitutionality of a Missouri statute
regulating the performance of abortions. The statute, inter alia: (1) sets
forth "findings" in its preamble that "he life of each human being begins
at conception," and that "unborn children have protectable interests in
life, health, and well-being," §§ 1.205.1(1), (2), and requires
that all state laws be interpreted to provide unborn children with the same
rights enjoyed by other persons, subject to the Federal Constitution and
this Court's precedents, § 1.205.2; (2) specifies that a physician,
prior to performing an abortion on any woman whom he has reason to believe
is 20 or more weeks pregnant, must ascertain whether the fetus is "viable"
by performing "such medical examinations and tests as are necessary to make
a finding of [the fetus'] gestational age, weight, and lung maturity," §
188.029; (3) prohibits the use of public employees and facilities to perform
or assist abortions not necessary to save the mother's life, §§
188.210, 188.215; and (4) makes it unlawful to use public funds, employees,
or facilities for the purpose of "encouraging or counseling" a woman to
have an abortion not necessary to save her life, §§ 188.205, 188.210,
188.215. The District Court struck down each of the
above provisions, among others, and enjoined their enforcement. The Court
of Appeals affirmed, ruling that the provisions in question violated this
Court's decisions in Roe v. Wade, 410 U.S. 113, and subsequent cases. |
| [13] | Held: The judgment is reversed. |
| [14] | CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II-A, II-B, and II-C,
and an opinion with respect to Parts II-D and III, in which JUSTICE WHITE
and JUSTICE KENNEDY join. |
| [15] | This appeal concerns the constitutionality of a Missouri statute regulating
the performance of abortions. The United States Court of Appeals for the
Eighth Circuit struck down several provisions of the statute on the ground
that they violated this Court's decision in Roe v. Wade, 410 U.S. 113 (1973),
and cases following it. We noted probable jurisdiction, 488 U.S. 1003 (1989),
and now reverse. |
| [16] | I |
| [17] | In June 1986, the Governor of Missouri signed into law Missouri Senate
Committee Substitute for House Bill No. 1596 (hereinafter Act or statute),
which amended existing state law concerning unborn children and abortions.
*fn1 The Act consisted of 20 provisions,
5 of which are now before the Court. The first provision, or preamble, contains
"findings" by the state legislature that "he life of each human being begins
at conception," and that "unborn children have protectable interests in
life, health, and well-being." Mo. Rev. Stat. §§ 1.205.1(1), (2)
(1986). The Act further requires that all Missouri laws be interpreted to
provide unborn children with the same rights enjoyed by other persons, subject
to the Federal Constitution and this Court's precedents. § 1.205.2.
Among its other provisions, the Act requires that, prior to performing an
abortion on any woman whom a physician has reason to believe is 20 or more
weeks pregnant, the physician ascertain whether the fetus is viable by performing
"such medical examinations and tests as are necessary to make a finding
of the gestational age, weight, and lung maturity of the unborn child."
§ 188.029. The Act also prohibits the use of public employees and facilities
to perform or assist abortions not necessary to save the mother's life,
and it prohibits the use of public funds, employees, or facilities for the
purpose of "encouraging or counseling" a woman to have an abortion not necessary
to save her life. §§ 188.205, 188.210, 188.215. |
| [18] | In July 1986, five health professionals employed by the State and two
nonprofit corporations brought this class action in the United States District
Court for the Western District of Missouri to challenge the constitutionality
of the Missouri statute. Plaintiffs, appellees in this Court, sought declaratory
and injunctive relief on the ground that certain statutory provisions violated
the First, Fourth, Ninth, and Fourteenth Amendments to the Federal Constitution.
App. A9. They asserted violations of various rights, including the "privacy
rights of pregnant women seeking abortions"; the "woman's right to an abortion";
the "righ to privacy in the physician-patient relationship"; the physician's
"righ to practice medicine"; the pregnant woman's "right to life due to
inherent risks involved in childbirth"; and the woman's right to "receive
. . . adequate medical advice and treatment" concerning abortions. Id.,
at A17-A19. |
| [19] | Plaintiffs filed this suit "on their own behalf and on behalf of the entire
class consisting of facilities and Missouri licensed physicians or other
health care professionals offering abortion services or pregnancy counseling
and on behalf of the entire class of pregnant females seeking abortion services
or pregnancy counseling within the State of Missouri." Id., at A13. The
two nonprofit corporations are Reproductive Health Services, which offers
family planning and gynecological services to the public, including abortion
services up to 22 weeks "gestational age," *fn2
and Planned Parenthood of Kansas City, which provides abortion services
up to 14 weeks gestational age. Id., at A9-A10. The individual plaintiffs
are three physicians, one nurse, and a social worker. All are "public employees"
at "public facilities" in Missouri, and they are paid for their services
with "public funds," as those terms are defined by § 188.200. The individual
plaintiffs, within the scope of their public employment, encourage and counsel
pregnant women to have nontherapeutic abortions. Two of the physicians perform
abortions. App. A54-A55. |
| [20] | Several weeks after the complaint was filed, the District Court temporarily
restrained enforcement of several provisions of the Act. Following a 3-day
trial in December 1986, the District Court declared seven provisions of
the Act unconstitutional and enjoined their enforcement. 662 F. Supp. 407
(WD Mo. 1987). These provisions included the preamble, § 1.205; the
"informed consent" provision, which required physicians to inform the pregnant
woman of certain facts before performing an abortion, § 188.039; the
requirement that post-16-week abortions be performed only in hospitals,
§ 188.025; the mandated tests to determine viability, § 188.029;
and the prohibition on the use of public funds, employees, and facilities
to perform or assist nontherapeutic abortions, and the restrictions on the
use of public funds, employees, and facilities to encourage or counsel women
to have such abortions, §§ 188.205, 188.210, 188.215. Id., at
430. |
| [21] | The Court of Appeals for the Eighth Circuit affirmed, with one exception
not relevant to this appeal. 851 F.2d 1071 (1988). The Court of Appeals
determined that Missouri's declaration that life begins at conception was
"simply an impermissible state adoption of a theory of when life begins
to justify its abortion regulations." Id., at 1076. Relying on Colautti
v. Franklin, 439 U.S. 379, 388-389 (1979), it further held that the requirement
that physicians perform viability tests was an unconstitutional legislative
intrusion on a matter of medical skill and judgment. 851 F.2d, at 1074-1075.
The Court of Appeals invalidated Missouri's prohibition on the use of public
facilities and employees to perform or assist abortions not necessary to
save the mother's life. Id., at 1081-1083. It distinguished our decisions
in Harris v. McRae, 448 U.S. 297 (1980), and Maher v. Roe, 432 U.S. 464
(1977), on the ground that "'here is a fundamental difference between providing
direct funding to effect the abortion decision and allowing staff physicians
to perform abortions at an existing publicly owned hospital.'" 851 F.2d,
at 1081, quoting Nyberg v. City of Virginia, 667 F.2d 754, 758 (CA8 1982),
appeal dism'd, 462 U.S. 1125 (1983). The Court of Appeals struck down the
provision prohibiting the use of public funds for "encouraging or counseling"
women to have nontherapeutic abortions, for the reason that this provision
was both overly vague and inconsistent with the right to an abortion enunciated
in Roe v. Wade. 851 F.2d, at 1077-1080. The court also invalidated the hospitalization
requirement for 16-week abortions, id., at 1073-1074, and the prohibition
on the use of public employees and facilities for abortion counseling, id.,
at 1077-1080, but the State has not appealed those parts of the judgment
below. See Juris. Statement I-II. *fn3 |
| [22] | II |
| [23] | Decision of this case requires us to address four sections of the Missouri
Act: (a) the preamble; (b) the prohibition on the use of public facilities
or employees to perform abortions; (c) the prohibition on public funding
of abortion counseling; and (d) the requirement that physicians conduct
viability tests prior to performing abortions. We address these seriatim. |
| [24] | A |
| [25] | The Act's preamble, as noted, sets forth "findings" by the Missouri Legislature
that "he life of each human being begins at conception," and that "nborn
children have protectable interests in life, health, and well-being." Mo.
Rev. Stat. §§ 1.205.1(1), (2) (1986). The Act then mandates that
state laws be interpreted to provide unborn children with "all the rights,
privileges, and immunities available to other persons, citizens, and residents
of this state," subject to the Constitution and this Court's precedents.
§ 1.205.2. *fn4 In invalidating
the preamble, the Court of Appeals relied on this Court's dictum that "'a
State may not adopt one theory of when life begins to justify its regulation
of abortions.'" 851 F.2d, at 1075-1076, quoting Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416, 444 (1983), in turn citing Roe
v. Wade, 410 U.S., at 159-162. It rejected Missouri's claim that the preamble
was "abortion-neutral," and "merely determine when life begins in a nonabortion
context, a traditional state prerogative." 851 F.2d, at 1076. The court
thought that "he only plausible inference" from the fact that "every remaining
section of the bill save one regulates the performance of abortions" was
that "the state intended its abortion regulations to be understood against
the backdrop of its theory of life." Ibid. *fn5 |
| [26] | The State contends that the preamble itself is precatory and imposes no
substantive restrictions on abortions, and that appellees therefore do not
have standing to challenge it. Brief for Appellants 21-24. Appellees, on
the other hand, insist that the preamble is an operative part of the Act
intended to guide the interpretation of other provisions of the Act. Brief
for Appellees 19-23. They maintain, for example, that the preamble's definition
of life may prevent physicians in public hospitals from dispensing certain
forms of contraceptives, such as the intrauterine device. Id., at 22. |
| [27] | In our view, the Court of Appeals misconceived the meaning of the Akron
dictum, which was only that a State could not "justify" an abortion regulation
otherwise invalid under Roe v. Wade on the ground that it embodied the State's
view about when life begins. Certainly the preamble does not by its terms
regulate abortion or any other aspect of appellees' medical practice. The
Court has emphasized that Roe v. Wade "implies no limitation on the authority
of a State to make a value judgment favoring childbirth over abortion."
Maher v. Roe, 432 U.S., at 474. The preamble can be read simply to express
that sort of value judgment. |
| [28] | We think the extent to which the preamble's language might be used to
interpret other state statutes or regulations is something that only the
courts of Missouri can definitively decide. State law has offered protections
to unborn children in tort and probate law, see Roe v. Wade, supra, at 161-162,
and § 1.205.2 can be interpreted to do no more than that. What we have,
then, is much the same situation that the Court confronted in Alabama State
Federation of Labor v. McAdory, 325 U.S. 450 (1945). As in that case: |
| [29] | "We are thus invited to pass upon the constitutional validity of a state
statute which has not yet been applied or threatened to be applied by the
state courts to petitioners or others in the manner anticipated. Lacking
any authoritative construction of the statute by the state courts, without
which no constitutional question arises, and lacking the authority to give
such a controlling construction ourselves, and with a record which presents
no concrete set of facts to which the statute is to be applied, the case
is plainly not one to be disposed of by the declaratory judgment procedure."
Id., at 460. |
| [30] | It will be time enough for federal courts to address the meaning of the
preamble should it be applied to restrict the activities of appellees in
some concrete way. Until then, this Court "is not empowered to decide .
. . abstract propositions, or to declare, for the government of future cases,
principles or rules of law which cannot affect the result as to the thing
in issue in the case before it." Tyler v. Judges of Court of Registration,
179 U.S. 405, 409 (1900). See also Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982).
*fn6 We therefore need not pass
on the constitutionality of the Act's preamble. |
| [31] | B |
| [32] | Section 188.210 provides that "t shall be unlawful for any public employee
within the scope of his employment to perform or assist an abortion, not
necessary to save the life of the mother," while § 188.215 makes it
"unlawful for any public facility to be used for the purpose of performing
or assisting an abortion not necessary to save the life of the mother."
*fn7 The Court of Appeals held
that these provisions contravened this Court's abortion decisions. 851 F.2d,
at 1082-1083. We take the contrary view. |
| [33] | As we said earlier this Term in DeShaney v. Winnebago County Dept. of
Social Services, 489 U.S. 189, 196 (1989): "ur cases have recognized that
the Due Process Clauses generally confer no affirmative right to governmental
aid, even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual."
In Maher v. Roe, supra, the Court upheld a Connecticut welfare regulation
under which Medicaid recipients received payments for medical services related
to childbirth, but not for nontherapeutic abortions. The Court rejected
the claim that this unequal subsidization of childbirth and abortion was
impermissible under Roe v. Wade. As the Court put it: |
| [34] | "The Connecticut regulation before us is different in kind from the laws
invalidated in our previous abortion decisions. The Connecticut regulation
places no obstacles -- absolute or otherwise -- in the pregnant woman's
path to an abortion. An indigent woman who desires an abortion suffers no
disadvantage as a consequence of Connecticut's decision to fund childbirth;
she continues as before to be dependent on private sources for the service
she desires. The State may have made childbirth a more attractive alternative,
thereby influencing the woman's decision, but it has imposed no restriction
on access to abortions that was not already there. The indigency that may
make it difficult -- and in some cases, perhaps, impossible -- for some
women to have abortions is neither created nor in any way affected by the
Connecticut regulation." 432 U.S., at 474. |
| [35] | Relying on Maher, the Court in Poelker v. Doe, 432 U.S. 519, 521 (1977),
held that the city of St. Louis committed "no constitutional violation .
. . in electing, as a policy choice, to provide publicly financed hospital
services for childbirth without providing corresponding services for nontherapeutic
abortions." |
| [36] | More recently, in Harris v. McRae, 448 U.S. 297 (1980), the Court upheld
"the most restrictive version of the Hyde Amendment," id., at 325, n. 27,
which withheld from States federal funds under the Medicaid program to reimburse
the costs of abortions, "'except where the life of the mother would be endangered
if the fetus were carried to term.'" Ibid. (quoting Pub. L. 94-439, §
209, 90 Stat. 1434). As in Maher and Poelker, the Court required only a
showing that Congress' authorization of "reimbursement for medically necessary
services generally, but not for certain medically necessary abortions" was
rationally related to the legitimate governmental goal of encouraging childbirth.
448 U.S., at 325. |
| [37] | The Court of Appeals distinguished these cases on the ground that "o prevent
access to a public facility does more than demonstrate a political choice
in favor of childbirth; it clearly narrows and in some cases forecloses
the availability of abortion to women." 851 F.2d, at 1081. The court reasoned
that the ban on the use of public facilities "could prevent a woman's chosen
doctor from performing an abortion because of his unprivileged status at
other hospitals or because a private hospital adopted a similar anti-abortion
stance." Ibid. It also thought that "uch a rule could increase the cost
of obtaining an abortion and delay the timing of it as well." Ibid. |
| [38] | We think that this analysis is much like that which we rejected in Maher,
Poelker, and McRae. As in those cases, the State's decision here to use
public facilities and staff to encourage childbirth over abortion "places
no governmental obstacle in the path of a woman who chooses to terminate
her pregnancy." McRae, 448 U.S., at 315. Just as Congress' refusal to fund
abortions in McRae left "an indigent woman with at least the same range
of choice in deciding whether to obtain a medically necessary abortion as
she would have had if Congress had chosen to subsidize no health care costs
at all," id., at 317, Missouri's refusal to allow public employees to perform
abortions in public hospitals leaves a pregnant woman with the same choices
as if the State had chosen not to operate any public hospitals at all. The
challenged provisions only restrict a woman's ability to obtain an abortion
to the extent that she chooses to use a physician affiliated with a public
hospital. This circumstance is more easily remedied, and thus considerably
less burdensome, than indigency, which "may make it difficult -- and in
some cases, perhaps, impossible -- for some women to have abortions" without
public funding. Maher, 432 U.S., at 474. Having held that the State's refusal
to fund abortions does not violate Roe v. Wade, it strains logic to reach
a contrary result for the use of public facilities and employees. If the
State may "make a value judgment favoring childbirth over abortion and .
. . implement that judgment by the allocation of public funds," Maher, supra,
at 474, surely it may do so through the allocation of other public resources,
such as hospitals and medical staff. |
| [39] | The Court of Appeals sought to distinguish our cases on the additional
ground that "he evidence here showed that all of the public facility's costs
in providing abortion services are recouped when the patient pays." 851
F.2d, at 1083. Absent any expenditure of public funds, the court thought
that Missouri was "expressing" more than "its preference for childbirth
over abortions," but rather was creating an "obstacle to exercise of the
right to choose an abortion [that could not] stand absent a compelling state
interest." Ibid. We disagree. |
| [40] | "Constitutional concerns are greatest," we said in Maher, supra, at 476,
"when the State attempts to impose its will by the force of law; the State's
power to encourage actions deemed to be in the public interest is necessarily
far broader." Nothing in the Constitution requires States to enter or remain
in the business of performing abortions. Nor, as appellees suggest, do private
physicians and their patients have some kind of constitutional right of
access to public facilities for the performance of abortions. Brief for
Appellees 46-47. Indeed, if the State does recoup all of its costs in performing
abortions, and no state subsidy, direct or indirect, is available, it is
difficult to see how any procreational choice is burdened by the State's
ban on the use of its facilities or employees for performing abortions.
*fn8 |
| [41] | Maher, Poelker, and McRae all support the view that the State need not
commit any resources to facilitating abortions, even if it can turn a profit
by doing so. In Poelker, the suit was filed by an indigent who could not
afford to pay for an abortion, but the ban on the performance of nontherapeutic
abortions in city-owned hospitals applied whether or not the pregnant woman
could pay. 432 U.S., at 520; id., at 524 (Brennan, J., Dissenting). *fn9
The Court emphasized that the mayor's decision to prohibit abortions in
city hospitals was "subject to public debate and approval or disapproval
at the polls," and that "the Constitution does not forbid a State or city,
pursuant to democratic processes, from expressing a preference for normal
childbirth as St. Louis has done." Id., at 521. Thus we uphold the Act's
restrictions on the use of public employees and facilities for the performance
or assistance of nontherapeutic abortions. |
| [42] | C |
| [43] | The Missouri Act contains three provisions relating to "encouraging or
counseling a woman to have an abortion not necessary to save her life."
Section 188.205 states that no public funds can be used for this purpose;
§ 188.210 states that public employees cannot, within the scope of
their employment, engage in such speech; and § 188.215 forbids such
speech in public facilities. The Court of Appeals did not consider §
188.205 separately from §§ 188.210 and 188.215. It held that all
three of these provisions were unconstitutionally vague, and that "the ban
on using public funds, employees, and facilities to encourage or counsel
a woman to have an abortion is an unacceptable infringement of the woman's
fourteenth amendment right to choose an abortion after receiving the medical
information necessary to exercise the right knowingly and intelligently."
851 F.2d, at 1079. *fn10 |
| [44] | Missouri has chosen only to appeal the Court of Appeals' invalidation
of the public funding provision, § 188.205. See Juris. Statement I-II.
A threshold question is whether this provision reaches primary conduct,
or whether it is simply an instruction to the State's fiscal officers not
to allocate funds for abortion counseling. We accept, for purposes of decision,
the State's claim that § 188.205 "is not directed at the conduct of
any physician or health care provider, private or public," but "is directed
solely at those persons responsible for expending public funds." Brief for
Appellants 43. *fn11 |
| [45] | Appellees contend that they are not "adversely" affected under the State's
interpretation of § 188.205, and therefore that there is no longer
a case or controversy before us on this question. Brief for Appellees 31-32.
Plaintiffs are masters of their complaints and remain so at the appellate
stage of a litigation. See Caterpillar Inc. v. Williams, 482 U.S. 386, 398-399
(1987). A majority of the Court agrees with appellees that the controversy
over § 188.205 is now moot, because appellees' argument amounts to
a decision to no longer seek a declaratory judgment that § 188.205
is unconstitutional and accompanying declarative relief. See Deakins v.
Monaghan, 484 U.S. 193, 199-201 (1988); United States v. Munsingwear, Inc.,
340 U.S. 36, 39-40 (1950). We accordingly direct the Court of Appeals to
vacate the judgment of the District Court with instructions to dismiss the
relevant part of the complaint. Deakins, 484 U.S., at 200. "Because this
was rendered moot in part by [appellees'] willingness permanently to withdraw
their equitable claims from their federal action, a dismissal with prejudice
is indicated." Ibid. |
| [46] | D |
| [47] | Section 188.029 of the Missouri Act provides: |
| [48] | "Before a physician performs an abortion on a woman he has reason to believe
is carrying an unborn child of twenty or more weeks gestational age, the
physician shall first determine if the unborn child is viable by using and
exercising that degree of care, skill, and proficiency commonly exercised
by the ordinarily skillful, careful, and prudent physician engaged in similar
practice under the same or similar conditions. In making this determination
of viability, the physician shall perform or cause to be performed such
medical examinations and tests as are necessary to make a finding of the
gestational age, weight, and lung maturity of the unborn child and shall
enter such findings and determination of viability in the medical record
of the mother." *fn12 |
| [49] | As with the preamble, the parties disagree over the meaning of this statutory
provision. The State emphasizes the language of the first sentence, which
speaks in terms of the physician's determination of viability being made
by the standards of ordinary skill in the medical profession. Brief for
Appellants 32-35. Appellees stress the language of the second sentence,
which prescribes such "tests as are necessary" to make a finding of gestational
age, fetal weight, and lung maturity. Brief for Appellees 26-30. |
| [50] | The Court of Appeals read § 188.029 as requiring that after 20 weeks
"doctors must perform tests to find gestational age, fetal weight and lung
maturity." 851 F.2d, at 1075, n. 5. The court indicated that the tests needed
to determine fetal weight at 20 weeks are "unreliable and inaccurate" and
would add $125 to $250 to the cost of an abortion. Ibid. It also stated
that "amniocentesis, the only method available to determine lung maturity,
is contrary to accepted medical practice until 28-30 weeks of gestation,
expensive, and imposes significant health risks for both the pregnant woman
and the fetus." Ibid. |
| [51] | We must first determine the meaning of § 188.029 under Missouri law.
Our usual practice is to defer to the lower court's construction of a state
statute, but we believe the Court of Appeals has "fallen into plain error"
in this case. Frisby v. Schultz, 487 U.S. 474, 483 (1988); see Brockett
v. Spokane Arcades, Inc., 472 U.S. 491, 500, n. 9 (1985). "'In expounding
a statute, we must not be guided by a single sentence or member of a sentence,
but look to the provisions of the whole law, and to its object and policy.'"
Philbrook v. Glodgett, 421 U.S. 707, 713 (1975), quoting United States v.
Heirs of Boisdore, 8 How. 113, 122 (1849). See Chemehuevi Tribe of Indians
v. FPC, 420 U.S. 395, 402-403 (1975); Kokoszka v. Belford, 417 U.S. 642,
650 (1974). The Court of Appeals' interpretation also runs "afoul of the
well established principle that statutes will be interpreted to avoid constitutional
difficulties." Frisby, supra, at 483. |
| [52] | We think the viability-testing provision makes sense only if the second
sentence is read to require only those tests that are useful to making subsidiary
findings as to viability. If we construe this provision to require a physician
to perform those tests needed to make the three specified findings in all
circumstances, including when the physician's reasonable professional judgment
indicates that the tests would be irrelevant to determining viability or
even dangerous to the mother and the fetus, the second sentence of §
188.029 would conflict with the first sentence's requirement that a physician
apply his reasonable professional skill and judgment. It would also be incongruous
to read this provision, especially the word "necessary," *fn13
to require the performance of tests irrelevant to the expressed statutory
purpose of determining viability. It thus seems clear to us that the Court
of Appeals' construction of § 188.029 violates well-accepted canons
of statutory interpretation used in the Missouri courts, see State ex rel.
Stern Brothers & Co. v. Stilley, 337 S. W. 2d 934, 939 (Mo. 1960) ("The
basic rule of statutory construction is to first seek the legislative intention,
and to effectuate it if possible, and the law favors constructions which
harmonize with reason, and which tend to avoid unjust, absurd, unreasonable
or confiscatory results, or oppression"); Bell v. MidCentury Ins. Co., 750
S. W. 2d 708, 710 (Mo. App. 1988) ("Interpreting the phrase literally would
produce an absurd result, which the Legislature is strongly presumed not
to have intended"), which Justice Blackmun ignores. Post, at 545-546. |
| [53] | The viability-testing provision of the Missouri Act is concerned with
promoting the State's interest in potential human life rather than in maternal
health. Section 188.029 creates what is essentially a presumption of viability
at 20 weeks, which the physician must rebut with tests indicating that the
fetus is not viable prior to performing an abortion. It also directs the
physician's determination as to viability by specifying consideration, if
feasible, of gestational age, fetal weight, and lung capacity. The District
Court found that "the medical evidence is uncontradicted that a 20-week
fetus is not viable," and that "23 1/2 to 24 weeks gestation is the earliest
point in pregnancy where a reasonable possibility of viability exists."
662 F. Supp., at 420. But it also found that there may be a 4-week error
in estimating gestational age, id., at 421, which supports testing at 20
weeks. |
| [54] | In Roe v. Wade, the Court recognized that the State has "important and
legitimate" interests in protecting maternal health and in the potentiality
of human life. 410 U.S., at 162. During the second trimester, the State
"may, if it chooses, regulate the abortion procedure in ways that are reasonably
related to maternal health." Id., at 164. After viability, when the State's
interest in potential human life was held to become compelling, the State
"may, if it chooses, regulate, and even proscribe, abortion except where
it is necessary, in appropriate medical judgment, for the preservation of
the life or health of the mother." Id., at 165. *fn14 |
| [55] | In Colautti v. Franklin, 439 U.S. 379 (1979), upon which appellees rely,
the Court held that a Pennsylvania statute regulating the standard of care
to be used by a physician performing an abortion of a possibly viable fetus
was void for vagueness. Id., at 390-401. But in the course of reaching that
Conclusion, the Court reaffirmed its earlier statement in Planned Parenthood
of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976), that "'the determination
of whether a particular fetus is viable is, and must be, a matter for the
judgment of the responsible attending physician.'" 439 U.S., at 396. Justice
Blackmun, post, at 545, n. 6, ignores the statement in Colautti that "neither
the legislature nor the courts may proclaim one of the elements entering
into the ascertainment of viability -- be it weeks of gestation or fetal
weight or any other single factor -- as the determinant of when the State
has a compelling interest in the life or health of the fetus." 439 U.S.,
at 388-389. To the extent that § 188.029 regulates the method for determining
viability, it undoubtedly does superimpose state regulation on the medical
determination whether a particular fetus is viable. The Court of Appeals
and the District Court thought it unconstitutional for this reason. 851
F.2d, at 1074-1075; 662 F. Supp., at 423. To the extent that the viability
tests increase the cost of what are in fact second-trimester abortions,
their validity may also be questioned under Akron, 462 U.S., at 434-435,
where the Court held that a requirement that second-trimester abortions
must be performed in hospitals was invalid because it substantially increased
the expense of those procedures. |
| [56] | We think that the doubt cast upon the Missouri statute by these cases
is not so much a flaw in the statute as it is a reflection of the fact that
the rigid trimester analysis of the course of a pregnancy enunciated in
Roe has resulted in subsequent cases like Colautti and Akron making constitutional
law in this area a virtual Procrustean bed. Statutes specifying elements
of informed consent to be provided abortion patients, for example, were
invalidated if they were thought to "structur . . . the dialogue between
the woman and her physician." Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747, 763 (1986). As the Dissenters in Thornburgh
pointed out, such a statute would have been sustained under any traditional
standard of judicial review, id., at 802 (White, J., Dissenting), or for
any other surgical procedure except abortion. Id., at 783 (Burger, C. J.,
Dissenting). |
| [57] | Stare decisis is a cornerstone of our legal system, but it has less power
in constitutional cases, where, save for constitutional amendments, this
Court is the only body able to make needed changes. See United States v.
Scott, 437 U.S. 82, 101 (1978). We have not refrained from reconsideration
of a prior construction of the Constitution that has proved "unsound in
principle and unworkable in practice." Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528, 546 (1985); see Solorio v. United States,
483 U.S. 435, 448-450 (1987); Erie R. Co. v. Tompkins, 304 U.S. 64, 74-78
(1938). We think the Roe trimester framework falls into that category. |
| [58] | In the first place, the rigid Roe framework is hardly consistent with
the notion of a Constitution cast in general terms, as ours is, and usually
speaking in general principles, as ours does. The key elements of the Roe
framework -- trimesters and viability -- are not found in the text of the
Constitution or in any place else one would expect to find a constitutional
principle. Since the bounds of the inquiry are essentially indeterminate,
the result has been a web of legal rules that have become increasingly intricate,
resembling a code of regulations rather than a body of constitutional doctrine.
*fn15 As Justice White has put
it, the trimester framework has left this Court to serve as the country's
" ex officio medical board with powers to approve or disapprove medical
and operative practices and standards throughout the United States." Planned
Parenthood of Central Mo. v. Danforth, 428 U.S., at 99 (opinion Concurring
in part and Dissenting in part). Cf. Garcia, supra, at 547. |
| [59] | In the second place, we do not see why the State's interest in protecting
potential human life should come into existence only at the point of viability,
and that there should therefore be a rigid line allowing state regulation
after viability but prohibiting it before viability. The Dissenters in Thornburgh,
writing in the context of the Roe trimester analysis, would have recognized
this fact by positing against the "fundamental right" recognized in Roe
the State's "compelling interest" in protecting potential human life throughout
pregnancy. "he State's interest, if compelling after viability, is equally
compelling before viability." Thornburgh, 476 U.S., at 795 (White, J., Dissenting);
see id., at 828 (O'Connor, J., Dissenting) ("State has compelling interests
in ensuring maternal health and in protecting potential human life, and
these interests exist 'throughout pregnancy'") (citation omitted). |
| [60] | The tests that § 188.029 requires the physician to perform are designed
to determine viability. The State here has chosen viability as the point
at which its interest in potential human life must be safeguarded. See Mo.
Rev. Stat. § 188.030 (1986) ("No abortion of a viable unborn child
shall be performed unless necessary to preserve the life or health of the
woman"). It is true that the tests in question increase the expense of abortion,
and regulate the discretion of the physician in determining the viability
of the fetus. Since the tests will undoubtedly show in many cases that the
fetus is not viable, the tests will have been performed for what were in
fact second-trimester abortions. But we are satisfied that the requirement
of these tests permissibly furthers the State's interest in protecting potential
human life, and we therefore believe § 188.029 to be constitutional. |
| [61] | Justice Blackmun takes us to task for our failure to join in a "great
issues" debate as to whether the Constitution includes an "unenumerated"
general right to privacy as recognized in cases such as Griswold v. Connecticut,
381 U.S. 479 (1965), and Roe. But Griswold v. Connecticut, unlike Roe, did
not purport to adopt a whole framework, complete with detailed rules and
distinctions, to govern the cases in which the asserted liberty interest
would apply. As such, it was far different from the opinion, if not the
holding, of Roe v. Wade, which sought to establish a constitutional framework
for judging state regulation of abortion during the entire term of pregnancy.
That framework sought to deal with areas of medical practice traditionally
subject to state regulation, and it sought to balance once and for all by
reference only to the calendar the claims of the State to protect the fetus
as a form of human life against the claims of a woman to decide for herself
whether or not to abort a fetus she was carrying. The experience of the
Court in applying Roe v. Wade in later cases, see (supra) , at 518, n. 15,
suggests to us that there is wisdom in not unnecessarily attempting to elaborate
the abstract differences between a "fundamental right" to abortion, as the
Court described it in Akron, 462 U.S. at 420, n. 1, a "limited fundamental
constitutional right," which Justice Blackmun today treats Roe as having
established, post, at 555, or a liberty interest protected by the Due Process
Clause, which we believe it to be. The Missouri testing requirement here
is reasonably designed to ensure that abortions are not performed where
the fetus is viable -- an end which all concede is legitimate -- and that
is sufficient to sustain its constitutionality. |
| [62] | Justice Blackmun also accuses us, inter alia, of cowardice and illegitimacy
in dealing with "the most politically divisive domestic legal issue of our
time." Post, at 559. There is no doubt that our holding today will allow
some governmental regulation of abortion that would have been prohibited
under the language of cases such as Colautti v. Franklin, 439 U.S. 379 (1979),
and Akron v. Akron Center for Reproductive Health, Inc., supra. But the
goal of constitutional adjudication is surely not to remove inexorably "politically
divisive" issues from the ambit of the legislative process, whereby the
people through their elected representatives deal with matters of concern
to them. The goal of constitutional adjudication is to hold true the balance
between that which the Constitution puts beyond the reach of the democratic
process and that which it does not. We think we have done that today. Justice
Blackmun's suggestion, post, at 538, 557-558, that legislative bodies, in
a Nation where more than half of our population is women, will treat our
decision today as an invitation to enact abortion regulation reminiscent
of the Dark Ages not only misreads our views but does scant Justice to those
who serve in such bodies and the people who elect them. |
| [63] | III |
| [64] | Both appellants and the United States as amicus curiae have urged that
we overrule our decision in Roe v. Wade. Brief for Appellants 12-18; Brief
for United States as Amicus Curiae 8-24. The facts of the present case,
however, differ from those at issue in Roe. Here, Missouri has determined
that viability is the point at which its interest in potential human life
must be safeguarded. In Roe, on the other hand, the Texas statute criminalized
the performance of all abortions, except when the mother's life was at stake.
410 U.S., at 117-118. This case therefore affords us no occasion to revisit
the holding of Roe, which was that the Texas statute unconstitutionally
infringed the right to an abortion derived from the Due Process Clause,
id., at 164, and we leave it undisturbed. To the extent indicated in our
opinion, we would modify and narrow Roe and succeeding cases. |
| [65] | Because none of the challenged provisions of the Missouri Act properly
before us conflict with the Constitution, the judgment of the Court of Appeals
is |
| [66] | Reversed. |
| [67] | Justice O'CONNOR, Concurring in part and Concurring in the judgment. |
| [68] | I concur in Parts I, II-A, II-B, and II-C of the Court's opinion. |
| [69] | I |
| [70] | Nothing in the record before us or the opinions below indicates that subsections
1(1) and 1(2) of the preamble to Missouri's abortion regulation statute
will affect a woman's decision to have an abortion. Justice Stevens, following
appellees, see Brief for Appellees 22, suggests that the preamble may also
"interfer with contraceptive choices," post, at 564, because certain contraceptive
devices act on a female ovum after it has been fertilized by a male sperm.
The Missouri Act defines "conception" as "the fertilization of the ovum
of a female by a sperm of a male," Mo. Rev. Stat. § 188.015(3) (1986),
and invests "unborn children" with "protectable interests in life, health,
and well-being," § 1.205.1(2), from "the moment of conception . . .
." § 1.205.3. Justice Stevens asserts that any possible interference
with a woman's right to use such postfertilization contraceptive devices
would be unconstitutional under Griswold v. Connecticut, 381 U.S. 479 (1965),
and our subsequent contraception cases. Post, at 564-566. Similarly, certain
amici suggest that the Missouri Act's preamble may prohibit the developing
technology of in vitro fertilization, a technique used to aid couples otherwise
unable to bear children in which a number of ova are removed from the woman
and fertilized by male sperm. This process often produces excess fertilized
ova ("unborn children" under the Missouri Act's definition) that are discarded
rather than reinserted into the woman's uterus. Brief for Association of
Reproductive Health Professionals et al. as Amici Curiae 38. It may be correct
that the use of postfertilization contraceptive devices is constitutionally
protected by Griswold and its progeny, but, as with a woman's abortion decision,
nothing in the record or the opinions below indicates that the preamble
will affect a woman's decision to practice contraception. For that matter,
nothing in appellees' original complaint, App. 8-21, or their motion in
limine to limit testimony and evidence on their challenge to the preamble,
id., at 57-59, indicates that appellees sought to enjoin potential violations
of Griswold. Neither is there any indication of the possibility that the
preamble might be applied to prohibit the performance of in vitro fertilization.
I agree with the Court, therefore, that all of these intimations of unconstitutionality
are simply too hypothetical to support the use of declaratory judgment procedures
and injunctive remedies in this case. |
| [71] | Similarly, it seems to me to follow directly from our previous decisions
concerning state or federal funding of abortions, Harris v. McRae, 448 U.S.
297 (1980), Maher v. Roe, 432 U.S. 464 (1977), and Poelker v. Doe, 432 U.S.
519 (1977), that appellees' facial challenge to the constitutionality of
Missouri's ban on the utilization of public facilities and the participation
of public employees in the performance of abortions not necessary to save
the life of the mother, Mo. Rev. Stat. §§ 188.210, 188.215 (1986),
cannot succeed. Given Missouri's definition of "public facility" as "any
public institution, public facility, public equipment, or any physical asset
owned, leased, or controlled by this state or any agency or political subdivisions
thereof," § 188.200(2), there may be conceivable applications of the
ban on the use of public facilities that would be unconstitutional. Appellees
and amici suggest that the State could try to enforce the ban against private
hospitals using public water and sewage lines, or against private hospitals
leasing state-owned equipment or state land. See Brief for Appellees 49-50;
Brief for National Association of Public Hospitals as Amicus Curiae 9-12.
Whether some or all of these or other applications of § 188.215 would
be constitutional need not be decided here. Maher, Poelker, and McRae stand
for the proposition that some quite straightforward applications of the
Missouri ban on the use of public facilities for performing abortions would
be constitutional and that is enough to defeat appellees' assertion that
the ban is facially unconstitutional. "A facial challenge to a legislative
Act is, of course, the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under
which the Act would be valid. The fact that the [relevant statute] might
operate unconstitutionally under some conceivable set of circumstances is
insufficient to render it wholly invalid, since we have not recognized an
'overbreadth' doctrine outside the limited context of the First Amendment."
United States v. Salerno, 481 U.S. 739, 745 (1987). |
| [72] | I also agree with the Court that, under the interpretation of § 188.205
urged by the State and adopted by the Court, there is no longer a case or
controversy before us over the constitutionality of that provision. I would
note, however, that this interpretation of § 188.205 is not binding
on the Supreme Court of Missouri which has the final word on the meaning
of that State's statutes. Virginia v. American Booksellers Assn., Inc.,
484 U.S. 383, 395 (1988); O'Brien v. Skinner, 414 U.S. 524, 531 (1974).
Should it happen that § 188.205, as ultimately interpreted by the Missouri
Supreme Court, does prohibit publicly employed health professionals from
giving specific medical advice to pregnant women, "the vacation and dismissal
of the complaint that has become moot 'clears the path for future relitigation
of the issues between the parties,' should subsequent events rekindle their
controversy." Deakins v. Monaghan, 484 U.S. 193, 201, n. 5 (1988), quoting
United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950). Unless such
events make their appearance and give rise to relitigation, I agree that
we and all federal courts are without jurisdiction to hear the merits of
this moot dispute. |
| [73] | II |
| [74] | In its interpretation of Missouri's "determination of viability" provision,
Mo. Rev. Stat. § 188.029 (1986), see ante, at 513-521, the plurality
has proceeded in a manner unnecessary to deciding the question at hand.
I agree with the plurality that it was plain error for the Court of Appeals
to interpret the second sentence of § 188.029 as meaning that "doctors
must perform tests to find gestational age, fetal weight and lung maturity."
851 F.2d 1071, 1075, n. 5 (CA8 1988) (emphasis in original). When read together
with the first sentence of § 188.029 -- which requires a physician
to "determine if the unborn child is viable by using and exercising that
degree of care, skill, and proficiency commonly exercised by the ordinary
skillful, careful, and prudent physician engaged in similar practice under
the same or similar conditions" -- it would be contradictory nonsense to
read the second sentence as requiring a physician to perform viability examinations
and tests in situations where it would be careless and imprudent to do so.
The plurality is quite correct: "the viability-testing provision makes sense
only if the second sentence is read to require only those tests that are
useful to making subsidiary findings as to viability," ante, at 514, and,
I would add, only those examinations and tests that it would not be imprudent
or careless to perform in the particular medical situation before the physician. |
| [75] | Unlike the plurality, I do not understand these viability testing requirements
to conflict with any of the Court's past decisions concerning state regulation
of abortion. Therefore, there is no necessity to accept the State's invitation
to re-examine the constitutional validity of Roe v. Wade, 410 U.S. 113 (1973).
Where there is no need to decide a constitutional question, it is a venerable
principle of this Court's adjudicatory processes not to do so, for "he Court
will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.'" Ashwander v. TVA, 297 U.S. 288, 346 (1936) (Brandeis,
J., Concurring), quoting Liverpool, New York & Philadelphia S. S. Co. v.
Commissioners of Emigration, 113 U.S. 33, 39 (1885). Neither will it generally
"formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied." 297 U.S., at 347. Quite simply,
"t is not the habit of the court to decide questions of a constitutional
nature unless absolutely necessary to a decision of the case." Burton v.
United States, 196 U.S. 283, 295 (1905). The Court today has accepted the
State's every interpretation of its abortion statute and has upheld, under
our existing precedents, every provision of that statute which is properly
before us. Precisely for this reason reconsideration of Roe falls not into
any "good-cause exception" to this "fundamental rule of judicial restraint
. . . ." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering,
P. C., 467 U.S. 138, 157 (1984). See post, at 532-533 (Scalia, J., Concurring
in part and Concurring in judgment). When the constitutional invalidity
of a State's abortion statute actually turns on the constitutional validity
of Roe v. Wade, there will be time enough to re-examine Roe. And to do so
carefully. |
| [76] | In assessing § 188.029 it is especially important to recognize that
appellees did not appeal the District Court's ruling that the first sentence
of § 188.029 is constitutional. 662 F. Supp. 407, 420-422 (WD Mo. 1987).
There is, accordingly, no dispute between the parties before us over the
constitutionality of the "presumption of viability at 20 weeks," ante, at
515, created by the first sentence of § 188.029. If anything might
arguably conflict with the Court's previous decisions concerning the determination
of viability, I would think it is the introduction of this presumption.
The plurality, see ante, at 515, refers to a passage from Planned Parenthood
of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976): "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 20-week presumption of viability
in the first sentence of § 188.029, it could be argued (though, I would
think, unsuccessfully), restricts "the judgment of the responsible attending
physician," by imposing on that physician the burden of overcoming the presumption.
This presumption may be a "superimpos state regulation on the medical determination
whether a particular fetus is viable," ante, at 517, but, if so, it is a
restriction on the physician's judgment that is not before us. As the plurality
properly interprets the second sentence of § 188.029, it does nothing
more than delineate means by which the unchallenged 20-week presumption
of viability may be overcome if those means are useful in doing so and can
be prudently employed. Contrary to the plurality's suggestion, see ante,
at 517, the District Court did not think the second sentence of § 188.029
unconstitutional for this reason. Rather, both the District Court and the
Court of Appeals thought the second sentence to be unconstitutional precisely
because they interpreted that sentence to impose state regulation on the
determination of viability that it does not impose. |
| [77] | Appellees suggest that the interpretation of § 188.029 urged by the
State may "virtually eliminat the constitutional issue in this case." Brief
for Appellees 30. Appellees therefore propose that we should abstain from
deciding that provision's constitutionality "in order to allow the state
courts to render the saving construction the State has proposed." Ibid.
Where the lower court has so clearly fallen into error I do not think abstention
is necessary or prudent. Accordingly, I consider the constitutionality of
the second sentence of § 188.029, as interpreted by the State, to determine
whether the constitutional issue is actually eliminated. |
| [78] | I do not think the second sentence of § 188.029, as interpreted by
the Court, imposes a degree of state regulation on the medical determination
of viability that in any way conflicts with prior decisions of this Court.
As the plurality recognizes, the requirement that, where not imprudent,
physicians perform examinations and tests useful to making subsidiary findings
to determine viability "promot the State's interest in potential human life
rather than in maternal health." Ante, at 515. No decision of this Court
has held that the State may not directly promote its interest in potential
life when viability is possible. Quite the contrary. In Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), the Court
considered a constitutional challenge to a Pennsylvania statute requiring
that a second physician be present during an abortion performed "when viability
is possible." Id., at 769-770. For guidance, the Court looked to the earlier
decision in Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft,
462 U.S. 476 (1983), upholding a Missouri statute requiring the presence
of a second physician during an abortion performed after viability. Id.,
at 482-486 (opinion of Powell, J.); id., at 505 (O'Connor, J., Concurring
in judgment in part and Dissenting in part). The Thornburgh majority struck
down the Pennsylvania statute merely because the statute had no exception
for emergency situations and not because it found a constitutional difference
between the State's promotion of its interest in potential life when viability
is possible and when viability is certain. 476 U.S., at 770-771. Despite
the clear recognition by the Thornburgh majority that the Pennsylvania and
Missouri statutes differed in this respect, there is no hint in the opinion
of the Thornburgh Court that the State's interest in potential life differs
depending on whether it seeks to further that interest postviability or
when viability is possible. Thus, all nine Members of the Thornburgh Court
appear to have agreed that it is not constitutionally impermissible for
the State to enact regulations designed to protect the State's interest
in potential life when viability is possible. See id., at 811 (White, J.,
Dissenting); id., at 832 (O'Connor, J., Dissenting). That is exactly what
Missouri has done in § 188.029. |
| [79] | Similarly, the basis for reliance by the District Court and the Court
of Appeals below on Colautti v. Franklin, 439 U.S. 379 (1979), disappears
when § 188.029 is properly interpreted. In Colautti, the Court observed: |
| [80] | "Because this point [of viability] may differ with each pregnancy, neither
the legislature nor the courts may proclaim one of the elements entering
into the ascertainment of viability -- be it weeks of gestation or fetal
weight or any other single factor -- as the determinant of when the State
has a compelling interest in the life or health of the fetus. Viability
is the critical point." Id., at 388-389. |
| [81] | The courts below, on the interpretation of § 188.029 rejected here,
found the second sentence of that provision at odds with this passage from
Colautti. See 851 F.2d, at 1074; 662 F. Supp., at 423. On this Court's interpretation
of § 188.029 it is clear that Missouri has not substituted any of the
"elements entering into the ascertainment of viability" as "the determinant
of when the State has a compelling interest in the life or health of the
fetus." All the second sentence of § 188.029 does is to require, when
not imprudent, the performance of "those tests that are useful to making
subsidiary findings as to viability." Ante, at 514 (emphasis added). Thus,
consistent with Colautti, viability remains the "critical point" under §
188.029. |
| [82] | Finally, and rather halfheartedly, the plurality suggests that the marginal
increase in the cost of an abortion created by Missouri's viability testing
provision may make § 188.029, even as interpreted, suspect under this
Court's decision in Akron v. Akron Center for Reproductive Health, Inc.,
462 U.S. 416, 434-439 (1983), striking down a second-trimester hospitalization
requirement. See ante, at 517. I Dissented from the Court's opinion in Akron
because it was my view that, even apart from Roe 's trimester framework
which I continue to consider problematic, see Thornburgh, supra, at 828
(dissenting opinion), the Akron majority had distorted and misapplied its
own standard for evaluating state regulation of abortion which the Court
had applied with fair consistency in the past: that, previability, "a regulation
imposed on a lawful abortion is not unconstitutional unless it unduly burdens
the right to seek an abortion." Akron, supra, at 453 (dissenting opinion)
(internal quotations omitted). |
| [83] | It is clear to me that requiring the performance of examinations and tests
useful to determining whether a fetus is viable, when viability is possible,
and when it would not be medically imprudent to do so, does not impose an
undue burden on a woman's abortion decision. On this ground alone I would
reject the suggestion that § 188.029 as interpreted is unconstitutional.
More to the point, however, just as I see no conflict between § 188.029
and Colautti or any decision of this Court concerning a State's ability
to give effect to its interest in potential life, I see no conflict between
§ 188.029 and the Court's opinion in Akron. The second-trimester hospitalization
requirement struck down in Akron imposed, in the majority's view, "a heavy,
and unnecessary, burden," 462 U.S., at 438, more than doubling the cost
of "women's access to a relatively inexpensive, otherwise accessible, and
safe abortion procedure." Ibid.; see also id., at 434. By contrast, the
cost of examinations and tests that could usefully and prudently be performed
when a woman is 20-24 weeks pregnant to determine whether the fetus is viable
would only marginally, if at all, increase the cost of an abortion. See
Brief for American Association of Pro-life Obstetricians and Gynecologists
et al. as Amici Curiae 3 ("At twenty weeks gestation, an ultrasound examination
to determine gestational age is standard medical practice. It is routinely
provided by the plaintiff clinics. An ultrasound examination can effectively
provide all three designated findings of sec. 188.029"); id., at 22 ("A
finding of fetal weight can be obtained from the same ultrasound test used
to determine gestational age"); id., at 25 ("There are a number of different
methods in standard medical practice to determine fetal lung maturity at
twenty or more weeks gestation. The most simple and most obvious is by inference.
It is well known that fetal lungs do not mature until 33-34 weeks gestation.
. . . If an assessment of the gestational age indicates that the child is
less than thirty-three weeks, a general finding can be made that the fetal
lungs are not mature. This finding can then be used by the physician in
making his determination of viability under section 188.029"); cf. Brief
for American Medical Association et al. as Amici Curiae 42 (no suggestion
that fetal weight and gestational age cannot be determined from the same
sonogram); id., at 43 (another clinical test for gestational age and, by
inference, fetal weight and lung maturity, is an accurate report of the
last menstrual period), citing Smith, Frey, & Johnson, Assessing Gestational
Age, 33 Am. Fam. Physician 215, 219-220 (1986). |
| [84] | Moreover, the examinations and tests required by § 188.029 are to
be performed when viability is possible. This feature of § 188.029
distinguishes it from the second-trimester hospitalization requirement struck
down by the Akron majority. As the Court recognized in Thornburgh, the State's
compelling interest in potential life postviability renders its interest
in determining the critical point of viability equally compelling. See (supra)
, at 527-528. Under the Court's precedents, the same cannot be said for
the Akron second-trimester hospitalization requirement. As I understand
the Court's opinion in Akron, therefore, the plurality's suggestion today
that Akron casts doubt on the validity of § 188.029, even as the Court
has interpreted it, is without foundation and cannot provide a basis for
reevaluating Roe. Accordingly, because the Court of Appeals misinterpreted
§ 188.029, and because, properly interpreted, § 188.029 is not
inconsistent with any of this Court's prior precedents, I would reverse
the decision of the Court of Appeals. |
| [85] | In sum, I concur in Parts I, II-A, II-B, and II-C of the Court's opinion
and concur in the judgment as to Part II-D. |
| [86] | JUSTICE SCALIA, Concurring in part and Concurring in the judgment. |
| [87] | I join Parts I, II-A, II-B, and II-C of the opinion of the Court. As to
Part II-D, I share Justice Blackmun's view, post, at 556, that it effectively
would overrule Roe v. Wade, 410 U.S. 113 (1973). I think that should be
done, but would do it more explicitly. Since today we contrive to avoid
doing it, and indeed to avoid almost any decision of national import, I
need not set forth my reasons, some of which have been well recited in Dissents
of my colleagues in other cases. See, e. g., Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747, 786-797 (1986) (White,
J., Dissenting); Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416, 453-459 (1983) (O'Connor, J., Dissenting); Roe v. Wade, supra,
at 172-178 (Rehnquist, J., Dissenting); Doe v. Bolton, 410 U.S. 179, 221-223
(1973) (White, J., Dissenting). |
| [88] | The outcome of today's case will doubtless be heralded as a triumph of
judicial statesmanship. It is not that, unless it is statesmanlike needlessly
to prolong this Court's self-awarded sovereignty over a field where it has
little proper business since the answers to most of the cruel questions
posed are political and not juridical -- a sovereignty which therefore quite
properly, but to the great damage of the Court, makes it the object of the
sort of organized public pressure that political institutions in a democracy
ought to receive. |
| [89] | Justice O'Connor's assertion, ante, at 526, that a "'fundamental rule
of judicial restraint'" requires us to avoid reconsidering Roe, cannot be
taken seriously. By finessing Roe we do not, as she suggests, ibid., adhere
to the strict and venerable rule that we should avoid "'decid questions
of a constitutional nature.'" We have not disposed of this case on some
statutory or procedural ground, but have decided, and could not avoid deciding,
whether the Missouri statute meets the requirements of the United States
Constitution. The only choice available is whether, in deciding that constitutional
question, we should use Roe v. Wade as the benchmark, or something else.
What is involved, therefore, is not the rule of avoiding constitutional
issues where possible, but the quite separate principle that we will not
"'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'" Ante, at 526. The latter is
a sound general principle, but one often departed from when good reason
exists. Just this Term, for example, in an opinion authored by Justice O'Connor,
despite the fact that we had already held a racially based set-aside unconstitutional
because unsupported by evidence of identified discrimination, which was
all that was needed to decide the case, we went on to outline the criteria
for properly tailoring race-based remedies in cases where such evidence
is present. Richmond v. J. A. Croson Co., 488 U.S. 469, 506-508 (1989).
Also this Term, in an opinion joined by Justice O'Connor, we announced the
constitutional rule that deprivation of the right to confer with counsel
during trial violates the Sixth Amendment even if no prejudice can be shown,
despite our finding that there had been no such deprivation on the facts
before us -- which was all that was needed to decide that case. Perry v.
Leeke, 488 U.S. 272, 278-280 (1989); see id., at 285 (Kennedy, J., Concurring
in part). I have not identified with certainty the first instance of our
deciding a case on broader constitutional grounds than absolutely necessary,
but it is assuredly no later than Marbury v. Madison, 1 Cranch 137 (1803),
where we held that mandamus could constitutionally issue against the Secretary
of State, although that was unnecessary given our holding that the law authorizing
issuance of the mandamus by this Court was unconstitutional. |
| [90] | The Court has often spoken more broadly than needed in precisely the fashion
at issue here, announcing a new rule of constitutional law when it could
have reached the identical result by applying the rule thereby displaced.
To describe two recent opinions that Justice O'Connor joined: In Daniels
v. Williams, 474 U.S. 327 (1986), we overruled our prior holding that a
"deprivation" of liberty or property could occur through negligent governmental
acts, ignoring the availability of the alternative constitutional ground
that, even if a deprivation had occurred, the State's post-deprivation remedies
satisfied due process, see id., at 340-343 (Stevens, J., Concurring in judgment).
In Illinois v. Gates, 462 U.S. 213 (1983), we replaced the pre-existing
"two-pronged" constitutional test for probable cause with a totality-of-the-circumstances
approach, ignoring the concurrence's argument that the same outcome could
have been reached under the old test, see id., at 267-272 (White, J., Concurring
in judgment). It is rare, of course, that the Court goes out of its way
to acknowledge that its judgment could have been reached under the old constitutional
rule, making its adoption of the new one unnecessary to the decision, but
even such explicit acknowledgment is not unheard of. See Commonwealth Edison
Co. v. Montana, 453 U.S. 609 (1981); Perez v. Campbell, 402 U.S. 637 (1971).
For a sampling of other cases where the availability of a narrower, well-established
ground is simply ignored in the Court's opinion adopting a new constitutional
rule, though pointed out in separate opinions of some Justices, see Michelin
Tire Corp. v. Wages, 423 U.S. 276 (1976); Pointer v. Texas, 380 U.S. 400
(1965); and Mapp v. Ohio, 367 U.S. 643 (1961). It would be wrong, in any
decision, to ignore the reality that our policy not to "formulate a rule
of constitutional law broader than is required by the precise facts" has
a frequently applied good-cause exception. But it seems particularly perverse
to convert the policy into an absolute in the present case, in order to
place beyond reach the inexpressibly "broader-than-was-required-by-the-precise-facts"
structure established by Roe v. Wade. |
| [91] | The real question, then, is whether there are valid reasons to go beyond
the most stingy possible holding today. It seems to me there are not only
valid but compelling ones. Ordinarily, speaking no more broadly than is
absolutely required avoids throwing settled law into confusion; doing so
today preserves a chaos that is evident to anyone who can read and count.
Alone sufficient to justify a broad holding is the fact that our retaining
control, through Roe, of what I believe to be, and many of our citizens
recognize to be, a political issue, continuously distorts the public perception
of the role of this Court. We can now look forward to at least another Term
with carts full of mail from the public, and streets full of demonstrators,
urging us -- their unelected and lifetenured Judges who have been awarded
those extraordinary, undemocratic characteristics precisely in order that
we might follow the law despite the popular will -- to follow the popular
will. Indeed, I expect we can look forward to even more of that than before,
given our indecisive decision today. And if these reasons for taking the
unexceptional course of reaching a broader holding are not enough, then
consider the nature of the constitutional question we avoid: In most cases,
we do no harm by not speaking more broadly than the decision requires. Anyone
affected by the conduct that the avoided holding would have prohibited will
be able to challenge it himself and have his day in court to make the argument.
Not so with respect to the harm that many States believed, pre- Roe, and
many may continue to believe, is caused by largely unrestricted abortion.
That will continue to occur if the States have the constitutional power
to prohibit it, and would do so, but we skillfully avoid telling them so.
Perhaps those abortions cannot constitutionally be proscribed. That is surely
an arguable question, the question that reconsideration of Roe v. Wade entails.
But what is not at all arguable, it seems to me, is that we should decide
now and not insist that we be run into a corner before we grudgingly yield
up our judgment. The only sound reason for the latter course is to prevent
a change in the law -- but to think that desirable begs the question to
be decided. |
| [92] | It was an arguable question today whether § 188.029 of the Missouri
law contravened this Court's understanding of Roe v. Wade,* and I would
have examined Roe rather than examining the contravention. Given the Court's
newly contracted abstemiousness, what will it take, one must wonder, to
permit us to reach that fundamental question? The result of our vote today
is that we will not reconsider that prior opinion, even if most of the Justices
think it is wrong, unless we have before us a statute that in fact contradicts
it -- and even then (under our newly discovered "no-broader-than-necessary"
requirement) only minor problematical aspects of Roe will be reconsidered,
unless one expects state legislatures to adopt provisions whose compliance
with Roe cannot even be argued with a straight face. It thus appears that
the mansion of constitutionalized abortion law, constructed overnight in
Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely
brought down, no matter how wrong it may be. |
| [93] | Of the four courses we might have chosen today -- to reaffirm Roe, to
overrule it explicitly, to overrule it sub silentio, or to avoid the question
-- the last is the least responsible. On the question of the constitutionality
of § 188.029, I concur in the judgment of the Court and strongly Dissent
from the manner in which it has been reached. |
| [94] | JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join,
Concurring in part and Dissenting in part. |
| [95] | Today, Roe v. Wade, 410 U.S. 113 (1973), and the fundamental constitutional
right of women to decide whether to terminate a pregnancy, survive but are
not secure. Although the Court extricates itself from this case without
making a single, even incremental, change in the law of abortion, the plurality
and Justice Scalia would overrule Roe (the first silently, the other explicitly)
and would return to the States virtually unfettered authority to control
the quintessentially intimate, personal, and life-directing decision whether
to carry a fetus to term. Although today, no less than yesterday, the Constitution
and the decisions of this Court prohibit a State from enacting laws that
inhibit women from the meaningful exercise of that right, a plurality of
this Court implicitly invites every state legislature to enact more and
more restrictive abortion regulations in order to provoke more and more
test cases, in the hope that sometime down the line the Court will return
the law of procreative freedom to the severe limitations that generally
prevailed in this country before January 22, 1973. Never in my memory has
a plurality announced a judgment of this Court that so foments disregard
for the law and for our standing decisions. |
| [96] | Nor in my memory has a plurality gone about its business in such a deceptive
fashion. At every level of its review, from its effort to read the real
meaning out of the Missouri statute, to its intended evisceration of precedents
and its deafening silence about the constitutional protections that it would
jettison, the plurality obscures the portent of its analysis. With feigned
restraint, the plurality announces that its analysis leaves Roe "undisturbed,"
albeit "modif and narrow." Ante, at 521. But this disclaimer is totally
meaningless. The plurality opinion is filled with winks, and nods, and knowing
glances to those who would do away with Roe explicitly, but turns a stone
face to anyone in search of what the plurality conceives as the scope of
a woman's right under the Due Process Clause to terminate a pregnancy free
from the coercive and brooding influence of the State. The simple truth
is that Roe would not survive the plurality's analysis, and that the plurality
provides no substitute for Roe 's protective umbrella. |
| [97] | I fear for the future. I fear for the liberty and equality of the millions
of women who have lived and come of age in the 16 years since Roe was decided.
I fear for the integrity of, and public esteem for, this Court. |
| [98] | I Dissent. |
| [99] | I |
| [100] | The Chief Justice parades through the four challenged sections of the
Missouri statute seriatim. I shall not do this, but shall relegate most
of my comments as to those sections to the margin. *fn1
Although I disagree with the Court's consideration of §§ 1.205,
188.210, and 188.215, and am especially disturbed by its misapplication
of our past decisions in upholding Missouri's ban on the performance of
abortions at "public facilities," its Discussion of these provisions is
merely prologue to the plurality's consideration of the statute's viability-testing
requirement, § 188.029 -- the only section of the Missouri statute
that the plurality construes as implicating Roe itself. There, tucked away
at the end of its opinion, the plurality suggests a radical reversal of
the law of abortion; and there, primarily, I direct my attention. |
| [101] | In the plurality's view, the viability-testing provision imposes a burden
on second-trimester abortions as a way of furthering the State's interest
in protecting the potential life of the fetus. Since under the Roe framework,
the State may not fully regulate abortion in the interest of potential life
(as opposed to maternal health) until the third trimester, the plurality
finds it necessary, in order to save the Missouri testing provision, to
throw out Roe 's trimester framework. Ante, at 518-520. In flat contradiction
to Roe, 410 U.S., at 163, the plurality concludes that the State's interest
in potential life is compelling before viability, and upholds the testing
provision because it "permissibly furthers" that state interest. Ante, at
519. |
| [102] | A |
| [103] | At the outset, I note that in its haste to limit abortion rights, the
plurality compounds the errors of its analysis by needlessly reaching out
to address constitutional questions that are not actually presented. The
conflict between § 188.029 and Roe 's trimester framework, which purportedly
drives the plurality to reconsider our past decisions, is a contrived conflict:
the product of an aggressive misreading of the viability-testing requirement
and a needlessly wooden application of the Roe framework. |
| [104] | The plurality's reading of § 188.029 is irreconcilable with the plain
language of the statute and is in derogation of this Court's settled view
that "'district courts and courts of appeals are better schooled in and
more able to interpret the laws of their respective States.'" Frisby v.
Schultz, 487 U.S. 474, 482 (1988), quoting Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 499-500 (1985). Abruptly setting aside the construction
of § 188.029 adopted by both the District Court and Court of Appeals
as "plain error," the plurality reads the viability-testing provision as
requiring only that before a physician may perform an abortion on a woman
whom he believes to be carrying a fetus of 20 or more weeks gestational
age, the doctor must determine whether the fetus is viable and, as part
of that exercise, must, to the extent feasible and consistent with sound
medical practice, conduct tests necessary to make findings of gestational
age, weight, and lung maturity. Ante, at 514-517. But the plurality's reading
of the provision, according to which the statute requires the physician
to perform tests only in order to determine viability, ignores the statutory
language explicitly directing that "the physician shall perform or cause
to be performed such medical examinations and tests as are necessary to
make a finding of the gestational age, weight, and lung maturity of the
unborn child and shall enter such findings" in the mother's medical record.
§ 188.029 (emphasis added). The statute's plain language requires the
physician to undertake whatever tests are necessary to determine gestational
age, weight, and lung maturity, regardless of whether these tests are necessary
to a finding of viability, and regardless of whether the tests subject the
pregnant woman or the fetus to additional health risks or add substantially
to the cost of an abortion. *fn2 |
| [105] | Had the plurality read the statute as written, it would have had no cause
to reconsider the Roe framework. As properly construed, the viability-testing
provision does not pass constitutional muster under even a rational-basis
standard, the least restrictive level of review applied by this Court. See
Williamson v. Lee Optical Co., 348 U.S. 483 (1955). By mandating tests to
determine fetal weight and lung maturity for every fetus thought to be more
than 20 weeks gestational age, the statute requires physicians to undertake
procedures, such as amniocentesis, that, in the situation presented, have
no medical justification, impose significant additional health risks on
both the pregnant woman and the fetus, and bear no rational relation to
the State's interest in protecting fetal life. *fn3
As written, § 188.029 is an arbitrary imposition of discomfort, risk,
and expense, furthering no discernible interest except to make the procurement
of an abortion as arduous and difficult as possible. Thus, were it not for
the plurality's tortured effort to avoid the plain import of § 188.029,
it could have struck down the testing provision as patently irrational irrespective
of the Roe framework. *fn4 |
| [106] | The plurality eschews this straightforward resolution, in the hope of
precipitating a constitutional crisis. Far from avoiding constitutional
difficulty, the plurality attempts to engineer a dramatic retrenchment in
our jurisprudence by exaggerating the conflict between its untenable construction
of § 188.029 and the Roe trimester framework. |
| [107] | No one contests that under the Roe framework the State, in order to promote
its interest in potential human life, may regulate and even proscribe nontherapeutic
abortions once the fetus becomes viable. Roe, 410 U.S., at 164-165. If,
as the plurality appears to hold, the testing provision simply requires
a physician to use appropriate and medically sound tests to determine whether
the fetus is actually viable when the estimated gestational age is greater
than 20 weeks (and therefore within what the District Court found to be
the margin of error for viability, ante, at 515-516), then I see little
or no conflict with Roe. *fn5 Nothing
in Roe, or any of its progeny, holds that a State may not effectuate its
compelling interest in the potential life of a viable fetus by seeking to
ensure that no viable fetus is mistakenly aborted because of the inherent
lack of precision in estimates of gestational age. A requirement that a
physician make a finding of viability, one way or the other, for every fetus
that falls within the range of possible viability does no more than preserve
the State's recognized authority. Although, as the plurality correctly points
out, such a testing requirement would have the effect of imposing additional
costs on second-trimester abortions where the tests indicated that the fetus
was not viable, these costs would be merely incidental to, and a necessary
accommodation of, the State's unquestioned right to prohibit nontherapeutic
abortions after the point of viability. In short, the testing provision,
as construed by the plurality, is consistent with the Roe framework and
could be upheld effortlessly under current doctrine. *fn6 |
| [108] | How ironic it is, then, and disingenuous, that the plurality scolds the
Court of Appeals for adopting a construction of the statute that fails to
avoid constitutional difficulties. Ante, at 514, 515. By distorting the
statute, the plurality manages to avoid invalidating the testing provision
on what should have been non-controversial constitutional grounds; having
done so, however, the plurality rushes headlong into a much deeper constitutional
thicket, brushing past an obvious basis for upholding § 188.029 in
search of a pretext for scuttling the trimester framework. Evidently, from
the plurality's perspective, the real problem with the Court of Appeals'
construction of § 188.029 is not that it raised a constitutional difficulty,
but that it raised the wrong constitutional difficulty -- one not implicating
Roe. The plurality has remedied that, traditional canons of construction
and judicial forbearance notwithstanding. |
| [109] | B |
| [110] | Having set up the conflict between § 188.029 and the Roe trimester
framework, the plurality summarily discards Roe 's analytic core as "'unsound
in principle and unworkable in practice.'" Ante, at 518, quoting Garcia
v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985).
This is so, the plurality claims, because the key elements of the framework
do not appear in the text of the Constitution, because the framework more
closely resembles a regulatory code than a body of constitutional doctrine,
and because under the framework the State's interest in potential human
life is considered compelling only after viability, when, in fact, that
interest is equally compelling throughout pregnancy. Ante, at 519-520. The
plurality does not bother to explain these alleged flaws in Roe. Bald assertion
masquerades as reasoning. The object, quite clearly, is not to persuade,
but to prevail. |
| [111] | 1 |
| [112] | The plurality opinion is far more remarkable for the arguments that it
does not advance than for those that it does. The plurality does not even
mention, much less join, the true jurisprudential debate underlying this
case: whether the Constitution includes an "unenumerated" general right
to privacy as recognized in many of our decisions, most notably Griswold
v. Connecticut, 381 U.S. 479 (1965), and Roe, and, more specifically, whether,
and to what extent, such a right to privacy extends to matters of childbearing
and family life, including abortion. See, e. g., Eisenstadt v. Baird, 405
U.S. 438 (1972) (contraception); Loving v. Virginia, 388 U.S. 1 (1967) (marriage);
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (procreation);
Pierce v. Society of Sisters, 268 U.S. 510 (1925) (childrearing). *fn7
These are questions of unsurpassed significance in this Court's interpretation
of the Constitution, and mark the battleground upon which this case was
fought, by the parties, by the United States as amicus on behalf of petitioners,
and by an unprecedented number of amici. On these grounds, abandoned by
the plurality, the Court should decide this case. |
| [113] | But rather than arguing that the text of the Constitution makes no mention
of the right to privacy, the plurality complains that the critical elements
of the Roe framework -- trimesters and viability -- do not appear in the
Constitution and are, therefore, somehow inconsistent with a Constitution
cast in general terms. Ante, at 518-519. Were this a true concern, we would
have to abandon most of our constitutional jurisprudence. As the plurality
well knows, or should know, the "critical elements" of countless constitutional
doctrines nowhere appear in the Constitution's text. The Constitution makes
no mention, for example, of the First Amendment's "actual malice" standard
for proving certain libels, see New York Times Co. v. Sullivan, 376 U.S.
254 (1964), or of the standard for determining when speech is obscene. See
Miller v. California, 413 U.S. 15 (1973). Similarly, the Constitution makes
no mention of the rational-basis test, or the specific verbal formulations
of intermediate and strict scrutiny by which this Court evaluates claims
under the Equal Protection Clause. The reason is simple. Like the Roe framework,
these tests or standards are not, and do not purport to be, rights protected
by the Constitution. Rather, they are Judge-made methods for evaluating
and measuring the strength and scope of constitutional rights or for balancing
the constitutional rights of individuals against the competing interests
of government. |
| [114] | With respect to the Roe framework, the general constitutional principle,
indeed the fundamental constitutional right, for which it was developed
is the right to privacy, see, e. g., Griswold v. Connecticut, 381 U.S. 479
(1965), a species of "liberty" protected by the Due Process Clause, which
under our past decisions safeguards the right of women to exercise some
control over their own role in procreation. As we recently reaffirmed in
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.
747 (1986), few decisions are "more basic to individual dignity and autonomy"
or more appropriate to that "certain private sphere of individual liberty"
that the Constitution reserves from the intrusive reach of government than
the right to make the uniquely personal, intimate, and self-defining decision
whether to end a pregnancy. Id., at 772. It is this general principle, the
"'moral fact that a person belongs to himself and not others nor to society
as a whole,'" id., at 777, n. 5 (Stevens, J., Concurring), quoting Fried,
Correspondence, 6 Phil. & Pub. Aff. 288-289 (1977), that is found in the
Constitution. See Roe, 410 U.S., at 152-153. The trimester framework simply
defines and limits that right to privacy in the abortion context to accommodate,
not destroy, a State's legitimate interest in protecting the health of pregnant
women and in preserving potential human life. Id., at 154-162. Fashioning
such accommodations between individual rights and the legitimate interests
of government, establishing benchmarks and standards with which to evaluate
the competing claims of individuals and government, lies at the very heart
of constitutional adjudication. To the extent that the trimester framework
is useful in this enterprise, it is not only consistent with constitutional
interpretation, but necessary to the wise and just exercise of this Court's
paramount authority to define the scope of constitutional rights. |
| [115] | 2 |
| [116] | The plurality next alleges that the result of the trimester framework
has "been a web of legal rules that have become increasingly intricate,
resembling a code of regulations rather than a body of constitutional doctrine."
Ante, at 518. Again, if this were a true and genuine concern, we would have
to abandon vast areas of our constitutional jurisprudence. The plurality
complains that under the trimester framework the Court has distinguished
between a city ordinance requiring that second-trimester abortions be performed
in clinics and a state law requiring that these abortions be performed in
hospitals, or between laws requiring that certain information be furnished
to a woman by a physician or his assistant and those requiring that such
information be furnished by the physician exclusively. Ante, at 518, n.
15, citing Simopoulos v. Virginia, 462 U.S. 506 (1983), and Akron v. Akron
Center for Reproductive Health, Inc., 462 U.S. 416 (1983). Are these distinctions
any finer, or more "regulatory," than the distinctions we have often drawn
in our First Amendment jurisprudence, where, for example, we have held that
a "release time" program permitting public-school students to leave school
grounds during school hours to receive religious instruction does not violate
the Establishment Clause, even though a release-time program permitting
religious instruction on school grounds does violate the Clause? Compare
Zorach v. Clauson, 343 U.S. 306 (1952), with Illinois ex rel. McCollum v.
Board of Education of School Dist. No. 71, Champaign County, 333 U.S. 203
(1948). Our Fourth Amendment jurisprudence recognizes factual distinctions
no less intricate. Just this Term, for example, we held that while an aerial
observation from a helicopter hovering at 400 feet does not violate any
reasonable expectation of privacy, such an expectation of privacy would
be violated by a helicopter observation from an unusually low altitude.
Florida v. Riley, 488 U.S. 445, 451 (1989) (O'Connor, J., Concurring in
judgment). Similarly, in a Sixth Amendment case, the Court held that although
an overnight ban on attorney-client communication violated the constitutionally
guaranteed right to counsel, Geders v. United States, 425 U.S. 80 (1976),
that right was not violated when a trial Judge separated a defendant from
his lawyer during a 15-minute recess after the defendant's direct testimony.
Perry v. Leeke, 488 U.S. 272 (1989). |
| [117] | That numerous constitutional doctrines result in narrow differentiations
between similar circumstances does not mean that this Court has abandoned
adjudication in favor of regulation. Rather, these careful distinctions
reflect the process of constitutional adjudication itself, which is often
highly fact specific, requiring such determinations as whether state laws
are "unduly burdensome" or "reasonable" or bear a "rational" or "necessary"
relation to asserted state interests. In a recent due process case, The
Chief Justice wrote for the Court: "any branches of the law abound in nice
distinctions that may be troublesome but have been thought nonetheless necessary:
'I do not think we need trouble ourselves with the thought that my view
depends upon differences of degree. The whole law does so as soon as it
is civilized.'" Daniels v. Williams, 474 U.S. 327, 334 (1986), quoting LeRoy
Fibre Co. v. Chicago, M. & St. P. R. Co., 232 U.S. 340, 354 (1914) (Holmes,
J., partially Concurring). |
| [118] | These "differences of degree" fully account for our holdings in Simopoulos,
supra, and Akron, supra. Those decisions rest on this Court's reasoned and
accurate judgment that hospitalization and doctor-counseling requirements
unduly burdened the right of women to terminate a pregnancy and were not
rationally related to the State's asserted interest in the health of pregnant
women, while Virginia's substantially less restrictive regulations were
not unduly burdensome and did rationally serve the State's interest. *fn8
That the Court exercised its best judgment in evaluating these markedly
different statutory schemes no more established the Court as an "' ex officio
medical board,'" ante, at 519, quoting Planned Parenthood of Central Mo.
v. Danforth, 428 U.S. 52, 99 (1976) (opinion of White, J., Concurring in
part and Dissenting in part), than our decisions involving religion in the
public schools establish the Court as a national school board, or our decisions
concerning prison regulations establish the Court as a bureau of prisons.
See Thornburgh v. Abbott, 490 U.S. 401 (1989) (adopting different standard
of First Amendment review for incoming as opposed to outgoing prison mail).
If, in delicate and complicated areas of constitutional law, our legal judgments
"have become increasingly intricate," ante, at 518, it is not, as the plurality
contends, because we have overstepped our judicial role. Quite the opposite:
the rules are intricate because we have remained conscientious in our duty
to do Justice carefully, especially when fundamental rights rise or fall
with our decisions. |
| [119] | 3 |
| [120] | Finally, the plurality asserts that the trimester framework cannot stand
because the State's interest in potential life is compelling throughout
pregnancy, not merely after viability. Ante, at 519. The opinion contains
not one word of rationale for its view of the State's interest. This "it-is-so-because-we-say-so"
jurisprudence constitutes nothing other than an attempted exercise of brute
force; reason, much less persuasion, has no place. |
| [121] | In answering the plurality's claim that the State's interest in the fetus
is uniform and compelling throughout pregnancy, I cannot improve upon what
Justice Stevens has written: |
| [122] | "I should think it obvious that the State's interest in the protection
of an embryo -- even if that interest is defined as 'protecting those who
will be citizens' . . . -- increases progressively and dramatically as the
organism's capacity to feel pain, to experience pleasure, to survive, and
to react to its surroundings increases day by day. The development of a
fetus -- and pregnancy itself -- are not static conditions, and the assertion
that the government's interest is static simply ignores this reality. .
. . nless the religious view that a fetus is a 'person' is adopted . . .
there is a fundamental and well-recognized difference between a fetus and
a human being; indeed, if there is not such a difference, the permissibility
of terminating the life of a fetus could scarcely be left to the will of
the state legislatures. And if distinctions may be drawn between a fetus
and a human being in terms of the state interest in their protection --
even though the fetus represents one of 'those who will be citizens' --
it seems to me quite odd to argue that distinctions may not also be drawn
between the state interest in protecting the freshly fertilized egg and
the state interest in protecting the 9-month-gestated, fully sentient fetus
on the eve of birth. Recognition of this distinction is supported not only
by logic, but also by history and by our shared experiences." Thornburgh,
476 U.S., at 778-779 (footnote omitted). |
| [123] | See also Roe, 410 U.S., at 129-147. |
| [124] | For my own part, I remain convinced, as six other Members of this Court
16 years ago were convinced, that the Roe framework, and the viability standard
in particular, fairly, sensibly, and effectively functions to safeguard
the constitutional liberties of pregnant women while recognizing and accommodating
the State's interest in potential human life. The viability line reflects
the biological facts and truths of fetal development; it marks that threshold
moment prior to which a fetus cannot survive separate from the woman and
cannot reasonably and objectively be regarded as a subject of rights or
interests distinct from, or paramount to, those of the pregnant woman. At
the same time, the viability standard takes account of the undeniable fact
that as the fetus evolves into its postnatal form, and as it loses its dependence
on the uterine environment, the State's interest in the fetus' potential
human life, and in fostering a regard for human life in general, becomes
compelling. As a practical matter, because viability follows "quickening"
-- the point at which a woman feels movement in her womb -- and because
viability occurs no earlier than 23 weeks gestational age, it establishes
an easily applicable standard for regulating abortion while providing a
pregnant woman ample time to exercise her fundamental right with her responsible
physician to terminate her pregnancy. *fn9
Although I have stated previously for a majority of this Court that "onstitutional
rights do not always have easily ascertainable boundaries," to seek and
establish those boundaries remains the special responsibility of this Court.
Thornburgh, 476 U.S., at 771. In Roe, we discharged that responsibility
as logic and science compelled. The plurality today advances not one reasonable
argument as to why our judgment in that case was wrong and should be abandoned. |
| [125] | C |
| [126] | Having contrived an opportunity to reconsider the Roe framework, and then
having discarded that framework, the plurality finds the testing provision
unobjectionable because it "permissibly furthers the State's interest in
protecting potential human life." Ante, at 519-520. This newly minted standard
is circular and totally meaningless. Whether a challenged abortion regulation
"permissibly furthers" a legitimate state interest is the question that
courts must answer in abortion cases, not the standard for courts to apply.
In keeping with the rest of its opinion, the plurality makes no attempt
to explain or to justify its new standard, either in the abstract or as
applied in this case. Nor could it. The "permissibly furthers" standard
has no independent meaning, and consists of nothing other than what a majority
of this Court may believe at any given moment in any given case. The plurality's
novel test appears to be nothing more than a dressed-up version of rational-basis
review, this Court's most lenient level of scrutiny. One thing is clear,
however: were the plurality's "permissibly furthers" standard adopted by
the Court, for all practical purposes, Roe would be overruled. *fn10 |
| [127] | The "permissibly furthers" standard completely disregards the irreducible
minimum of Roe: the Court's recognition that a woman has a limited fundamental
constitutional right to decide whether to terminate a pregnancy. That right
receives no meaningful recognition in the plurality's written opinion. Since,
in the plurality's view, the State's interest in potential life is compelling
as of the moment of conception, and is therefore served only if abortion
is abolished, every hindrance to a woman's ability to obtain an abortion
must be "permissible." Indeed, the more severe the hindrance, the more effectively
(and permissibly) the State's interest would be furthered. A tax on abortions
or a criminal prohibition would both satisfy the plurality's standard. So,
for that matter, would a requirement that a pregnant woman memorize and
recite today's plurality opinion before seeking an abortion. |
| [128] | The plurality pretends that Roe survives, explaining that the facts of
this case differ from those in Roe: here, Missouri has chosen to assert
its interest in potential life only at the point of viability, whereas,
in Roe, Texas had asserted that interest from the point of conception, criminalizing
all abortions, except where the life of the mother was at stake. Ante, at
521. This, of course, is a distinction without a difference. The plurality
repudiates every principle for which Roe stands; in good conscience, it
cannot possibly believe that Roe lies "undisturbed" merely because this
case does not call upon the Court to reconsider the Texas statute, or one
like it. If the Constitution permits a State to enact any statute that reasonably
furthers its interest in potential life, and if that interest arises as
of conception, why would the Texas statute fail to pass muster? One suspects
that the plurality agrees. It is impossible to read the plurality opinion
and especially its final paragraph, without recognizing its implicit invitation
to every State to enact more and more restrictive abortion laws, and to
assert their interest in potential life as of the moment of conception.
All these laws will satisfy the plurality's nonscrutiny, until sometime,
a new regime of old Dissenters and new appointees will declare what the
plurality intends: that Roe is no longer good law. *fn11 |
| [129] | D |
| [130] | Thus, "not with a bang, but a whimper," the plurality discards a landmark
case of the last generation, and casts into darkness the hopes and visions
of every woman in this country who had come to believe that the Constitution
guaranteed her the right to exercise some control over her unique ability
to bear children. The plurality does so either oblivious or insensitive
to the fact that millions of women, and their families, have ordered their
lives around the right to reproductive choice, and that this right has become
vital to the full participation of women in the economic and political walks
of American life. The plurality would clear the way once again for government
to force upon women the physical labor and specific and direct medical and
psychological harms that may accompany carrying a fetus to term. The plurality
would clear the way again for the State to conscript a woman's body and
to force upon her a "distressful life and future." Roe, 410 U.S., at 153. |
| [131] | The result, as we know from experience, see Cates & Rochat, Illegal Abortions
in the United States: 1972-1974, 8 Family Planning Perspectives 86, 92 (1976),
would be that every year hundreds of thousands of women, in desperation,
would defy the law, and place their health and safety in the unclean and
unsympathetic hands of back-alley abortionists, or they would attempt to
perform abortions upon themselves, with disastrous results. Every year,
many women, especially poor and minority women, would die or suffer debilitating
physical trauma, all in the name of enforced morality or religious dictates
or lack of compassion, as it may be. |
| [132] | Of the aspirations and settled understandings of American women, of the inevitable and brutal consequences of what it is doing, the tough-approach plurality utters not a word. This silence is callous. It is also profoundly destructive of this Court as an institution. To overturn a constitutional decision is a rare and grave |