*1 OF KANSAS PARENTHOOD ASSOCIATION PLANNED ASHCROFT, MISSOURI, INC., CITY, et al. MISSOURI, OF GENERAL ATTORNEY et al. Argued 1982 Decided June 1983*
No. 81-1255. November Missouri, * Together 81-1623, Ashcroft, Attorney with No. General of Missouri, Inc., City, et al. v. Planned Parenthood Association Kansas al., et also on certiorari to same court. *2 Powell, J., judgment announced the ofthe Court in Part VI and delivered opinion II, BURGER, of the I respect Court with to Parts and in which Brennan, J., Marshall, Blackmun, Stevens, JJ., C. and joined, and opinion respect III, IV, Burger, and an V, J., with to Parts in and which C. joined. Blackmun, J., opinion concurring part dissenting filed an in and in Brennan, in JJ., joined, post, p. part, Marshall, Stevens, which and 494. O’Connor, J., opinion filed concurring judgment an in the part in and dis- senting part, Rehnquist, JJ., post, p. 505. joined, which White and
Frank Susman and for argued cause filed briefs peti- tioners in No. 81-1255 and in No. 81-1623. respondents
John Ashcroft, se, Attorney Missouri, General ar pro gued the cause for No. 81-1255 respondents and petition ers in No. 81-1623. With him the briefs was Michael L. Boicourt, General.† Assistant Attorney Horan,
† Rosenblum, Dennis Trueman, J. Victor G. Patrick A. and Thomas J. Manen filed a brief for Americans Life as amicus United curiae urging reversal. Briefs of amici Law, curiae Sylvia A. urging affirmance were filed Taub, Nadine and Ellen J. Winner for the Committee for Abortion Rights judgment of the Court announced Powell Justice respect opinion Court with delivered Part VI and respect opinion III, IV, to Parts II I and to Parts joins. V, which Chief City Re v. Akron Center Akron like cases, These Simopoulos p. productive Health, ante, Inc., validity present questions Virginia, p. post, as regulating performance ordinances statutes or local state of abortions.
I *3 City, Missouri, of Kansas Parenthood Association Planned perform physicians abortions, and an abortion Inc., two who complaint (plaintiffs) in the District filed a Court clinic challenging, unconstitutional, as District of Missouri Western per- regulating the statutes several the Missouri sections The sections relevant here include formance of abortions. 1982), § (Supp. requiring that 188.025 abor- Mo. Rev. Stat. performed hospital;1 pregnancy 12 be in a tions after weeks requiring pathology report for each abortion §188.047, presence performed;2 requiring the of a second §188.030.3, Jr., Bopp, James al.; by Against et and for the and Sterilization Abuse Committee, Right to Life Inc. National Lee, amici Solicitor Assistant by curiae were General Briefs filed McGrath, Attorney Deputy General Solicitor General Geller for the and Alan Ernest for the States; by Legal United Defense Fund Unborn Federation; by Phyl- Judith Levin for the National Abortion Children; by Segal, Avner, lis N. Judith 1. and Jemera Rone for the National Organiza- Eve Paul and Dara Klassel Women; by W. tion for for the Planned Parent- America, Inc., al.; by Nancy Reardan for Women hood Federation et Appleton Frelich Lawyers al.; Susan and Paul of Sacramento et Brest for Professor Richard et L. Abel al. 1982) § (Supp. provides: “Every Missouri Rev. Stat. 188.025 abortion subsequent performed to the first pregnancy per twelve weeks of shall be hospital.” formed in a 1982) §188.047 (Supp. Missouri provides: Rev. Stat. representative sample
“A of tissue removed at the time of abortion shall eligible submitted to a or pathologist, be board certified who shall file a abortions after physician during performed viability;3 minors to secure or §188.028, requiring parental judicial consent.4 health,
copy report of the tissue with the state division of and who shall facility provide copy report hospital in of the to the abortion or which the performed pathologist's report abortion or induced and the was shall patient’s a part permanent made of the record.” 1982) (Supp. provides: Rev. Missouri Stat. 188.030.3 performed only “An abortion of a viable unborn child shall be or induced physician physician perform- when there is attendance a other than the ing inducing provide or who shall take abortion control of and immedi- ate medical care for a child bom as a of the During result abortion. it, performance abortion, physician performing of the subsequent abortion, physician required by attendance, section to be in steps keeping good practice, shall take all reasonable medical con- used, the procedure preserve sistent with the life and health via- child; provided pose ble it an unborn does not increased risk to the life or health of the woman.” 1982) (Supp. provides: Missouri Rev. Stat. 188.028 person perform
“1. knowingly upon pregnant No shall years age eighteen woman under the unless: “(1) attending has secured the informed written consent guardian; parent of minor and one or “(2) emancipated attending physician The minor is and the has received *4 minor; the informed of the written consent or “(3) granted right The minor has the to self-consent been to the abortion section, by pursuant court to attending order subsection of this and the minor; has received the informed written consent of the or “(4) granted order, The minor has been consent to the abortion court given and the court has its informed written consent in accordance with section, having subsection 2 of this willingly, and the minor is the abortion compliance 3 of this subsection section. right “2. The a minor to of self-consent to an abortion under subdivision (3) (4) of subsection of this section or court consent under subdivision of may 1 of granted by subsection this section be pursuant a court to the fol- procedures: lowing
“(1) The minor or next shall application juvenile friend make an to the court shall which assist the minor or next friend in preparing petition the required pursuant and notices to this section. The minor the or next friend petition of the minor setting shall thereafter file a forth the initials of minor; the age minor; the of the the parent, names and addresses of each wit- expert from a number of testimony hearing After all these sections invalidated the District Court nesses, 699- 483 F. Supp. requirement. the except pathology (1980).5 for the Circuit Appeals Eighth The Court of guardian no has been or, parents the are deceased and guardian, if minor’s minor; the standing parentis in loco that the any person other appointed, consequences of the abor- fully of the risks and has been informed minor capacity mind and has sufficient intellectual tion; the minor is of sound abortion; that, grant the minor ma- if the court does not to consent to the abortion, the court to the should jority rights purpose for the consent give judicial of the minor is in the interest and find that the abortion best guardian abortion; appoint a ad litem of that the court should consent to the private counsel, if have that the court child; the minor does not petition signed by the minor or the appoint counsel. The shall be should friend; next
“(8) petition, record, on hearing A on the merits of the to be held days possible filing petition. within five of the shall be held as soon as of the relating hearing, ... At the the court shall hear evidence to the emotional maturity, understanding minor; development, intellect and the na- abortion; ture, possible consequences, any alternatives to the determining other evidence that the court find useful whether the rights granted majority purpose consenting for the minor should be minor; the abortion or whether the abortion is the best interests of the “(4) decree, good In the the court shall for cause: “(a) petition majority purpose rights consenting Grant the for the abortion; or “(b) give in the Find be best interests of the minor and judicial abortion, grounds finding; setting consent forth the for so “(c) Deny petition, setting grounds petition forth the on which denied; abortion, If orally
“3. a minor desires an then she shall be informed of and, possible, sign required by if consent written section 188.039 in the person. performed same manner as an adult No abortion shall be will, against except performed against minor her that an abortion *5 (4) pursuant the will of a minor to a court order described subdivision necessary preserve 1 of this section that to subsection the abortion the life of the minor.” 5 attorney’s The by District Court also awarded fees for all hours claimed plaintiffs’ attorneys. Appeals The Court of affirmed this allocation of
481 judgment respect reversed the District Court’s with thereby upholding requirement 188.028, that minor parental judicial secure or consent to an abortion. It also sustaining held that the District Court erred in §188.047, pathology requirement. judgment The District Court’s respect second-physician requirement was af- proceed- firmed, and the case was remanded for further ings findings relating hospitali- to the second-trimester (1981). requirement. zation 655 F. 848, 2d 872-873 On holding remand, the District Court adhered to its that the hospitalization requirement second-trimester was unconsti- Appeals judgment. tutional. The Court of affirmed this 664 (1981). granted F. 2d 691 We certiorari. 456 U. S. (1982). today City The Court Akron, ante, 426-431, has fully principles govern judicial stated that review of state regulating repeated statutes abortions, and these need not be principles here. With these in mind, we turn to the statutes at issue.
II City city requiring Akron, we invalidated ordinance physicians perform gen- all second-trimester abortions at special hospitals by eral or accredited the Joint Commission (JCAH) Hospitals by on Accreditation of the American Osteopathic Ante, at 431-432. Association. Missouri’s hospitalization requirements are similar to those enacted performed Akron, as all second-trimester abortions must be general, City acute-care Forthe stated in facilities.6 reasons (CA8 1981). petition fees. 2d See F. for certiorari fees, attorney’s pursuant raises issue whether an award of made (1976 V), ed., proportioned Supp. U. S. C. 1988 should be to reflect plaintiffs prevailed. extent to which statutory provisions “hospital” Missouri does not define the term in its below, assume, regulating as abortions. We therefore must did courts 3,5, 679, 686, (1980); 687, 689-690, nn. Supp. see 483 F. 664 F. 2d n. 10 (1981), meaning general, and 6 the term its common of a acute- has *6 in- that such a “unreasonably we held Akron, requirement to right constitutional obtain abor- woman’s fringes upon affirm the Ante, reasons, tion.” at 439. For same we § that 188.025 is unconstitutional. judgment Court of Appeals’
H-Hh—I second-physician requirement. We turn now State’s (1973), the Court Wade, recognized In Roe v. U. S. in the life of a viable compelling that the State has a interest its interest promoting fetus: potential- “[T]he chooses, life if it and even regulate, pro- of human ity may, necessary, where it is scribe, except appropriate for of the life or health of the preservation medical judgment, Franklin, at 164-165. See Colautti v. Id., mother.” Doe, 432 (1979); 438, 386-387 Beal v. U. S. U. S. (1977). of the Missouri statutes under- 445-446 Several are Postviability proscribed take such abortions regulation. of the life or the health necessary when except preserve §188.030.1 The the woman. Mo. Rev. Stat. (Supp. 188.015(2) 1982) (defining § facility. (Supp. “abor- care Cf. Mo. Rev. Stat. office, any place facility” clinic, facility in physician’s tion as “a other or hospital”). performed than a Section 197.020.2 abortions are other which laws, hospital licensing (1978), part of Missouri’s reads: “ op- ‘Hospital’ primarily to the maintenance and place means devoted than diagnosis, for the treatment or care not less eration facilities any or more nonrelated individuals suf- twenty-four hours in week three illness, deformity physical fering disease, injury, or other from abnormal twenty- conditions; primarily provide for not less than place or a devoted medical . . . care for three or more nonrelated four hours week individuals. . . .” 197.200(1) (1978) (defining “ambulatory surgical cen- Rev. Cf. Mo. Stat. physicians” organized
ter” include facilities “with an medical staff registered nursing professional services and “with continuous facility”); is in the 13 Mo. Admin. Code patient whenever a services (1977) (same). 50-30.010(1)(A) regulations Department construction, facilities, physical standards for the Social Services establish are hospitals. §§50-20.010 to 50-20.030. These and administration of Akron, ante, City and n. 16. not unlike those set JCAH. See *7 State also forbids the use of abortion procedures fatal to the viable fetus unless alternative procedures a pose greater risk to the § health of the woman. 188.030.2.
The statutory at issue in provision this case requires attendance of a second physician at the abortion of a viable § fetus. 188.030.3. This section that requires second “take physician all reasonable with steps keeping good medical practice... to preserve the life and health of the via- ble unborn child; that it provided does pose not increased supra. risk to the life or health of the woman.” n. 3, See It also that the second provides physician “shall take control of and immediate provide medical care for a child bom as a result of the abortion.” § lower courts invalidated 188.030.3.7 The plaintiffs, on
respondents
here
this issue, urge affirmance on the
found,
7 The courts below
partial dissenting
Justice Blackmun’s
opinion agrees, post,
499-500,
justification
possible
at
that there is no
for a
second-physician requirement whenever D&E is used because no viable fetus
694;
procedure.
2d,
can survive a D&E
with no elaboration —Dr. His no Schmidt. Crist, enlightening. Although ment with Dr. he conceded that the at- physician tendance of a second for a D&E abortion on a viable fetus not was theoretical, necessary, point mostly “simply he he considered because question viability up [did] not that the comes when D&E believe 836. reminded of elected method abortion.” Record When testimony, possibility Dr. earlier he conceded the remote of third- Crist’s abortions, personally trimester “I cannot conceive that as D&E but stated: significant practical important legally, It from a point. [not] be but . . .” Ibid. standpoint. medical that Dr. Crist’s discordant testi- Given physicians surgical attendance for other medical or procedure, including delivery premature childbirth or of a infant. physician’s primary
The first concern will be the life and Many health of the woman. third-trimester abortions emergency operations,8 permits Missouri will be as the State only they necessary pre- these late abortions when are serve the life or the health of the woman. It is not unreason- during operation able for the State to assume that physician’s pre- first attention and skills will be directed to serving protecting the woman’s health, not to the actual procedure. life of those fetuses who survive the abortion Vi- grave danger able fetuses will immediate because of premature physician, their A birth. second in situations permits where Missouri abortions, third-trimester be of physician preserving assistance to woman’s the health and life of the child.
By giving immediate medical attention to a fetus that is de- physician alive, livered the second will assure that the State’s protected fully interests are more than the first given compelling alone would be able do. And inter- *9 preserving say est that the in life, State has we cannot that requirement physician the of Missouri a second in those un- mony wholly unsupported, compelling protecting is the State’s interest justifies second-physician viable requirement though fetus the even there may physician may be the rare honestly case when a think that D&E required Legislation for the mother’s health. not need accommodate every contingency. conceivable clearly expressed exception There is no on the the statute for the face of performance of of an abortion a viable fetus without the second where, may emergency example, attendance. There be the situations endangered § by delay. quali woman’s health 188.030.3 is be Section fied, by pose part, phrase “provided at least in the that it not an in does reasonably to life creased risk the or health of the woman.” This clause Matheson, H. L. apply could be construed to to such a situation. Cf. (1981) 398, 407, (rejecting argument 450 U. n. 14 that Utah statute S. needs). might apply to health care emergency individuals with permits a usual circumstances where Missouri third-trimes- Preserving life ter is unconstitutional. the of a via- possible,9 not often ble fetus that aborted but the legitimately may provide safeguards choose to for the State comparatively of live birth that few instances occur. We second-physicianrequirement reasonably believe the furthers compelling protecting the interest the State’s lives judgment viable and we reverse the of the Court fetuses, holding Appeals that 188.030.3is unconstitutional.
HH > hospital regulating State, services within the Missouri surgically excep- requires “[a]ll tissue removed with the tonsils, adenoids, tion of such tissue as hernial sacs and prepuces, by pathologist, shall be examined either on arrangement premises by hospital.” or outside 50-20.030(3)(A)7(1977). respect Mo. Admin. Code With performed hospitals or in some other abortions, whether §188.047 facility, requires pathologist copy to “file a report . . .” tissue state division of health . See swpra. pathologist required “provide n. also is facility copy report hospital to the abortion in which performed Thus, the abortion was or induced.” Missouri following appears require that tissue as as abortions, well surgery performed hospitals, all from almost other must be pathologist, merely per- submitted to a not examined forming question doctor. The narrow before us is whether lawfully may require fol- also the tissue removed (ACOG) College Gynecologists Tech American of Obstetricians and See (Dec. 1979) (as 56, p. high as 7% rate for nical Bulletin No. live-birth Hinman, agents); Reported & intrauterine instillation uterotonic Stroh *10 Following Experi One-Half Years' Live Births Induced Abortion: Two and (1976) York, Gynecol. Upstate ence in 126 Am. J. Obstet. 83-84 New (26 induced-abortions; following hysterotomy; following saline 9 live births abortion) (1 births); oxtyocin-induced out of 38 5 following 1 survival live id., (50-62% mortality weeks); rate for fetuses and 27 at Record 728 id., (50% (25-92% weeks); mor mortality and 29 at 837 rate for fetuses 28 weeks). tality rate at 34 abortions in lowing as performed clinics well as hospitals be submitted to a pathologist. its face and in effect,
On is reasonably 188.047 related to generally medical accepted standards “further[s] impor- City Akron, ante, tant health-related state concerns.” 430. As the Court of Appeals recognized, pathology examina- tions are “useful and even clearly cases,” some necessary because “abnormalities the tissue may serious, warn of fatal disorders.” 655 F. possibly at 870.10 As 2d, rule, a it is all tissue to the examina- medical to submit accepted practice tion of a pathologist.11 This is particularly important follow- abortion, because ing remain as to the questions long-range 10 pathological A designed examination is to assist the detection of fatal ectopic pregnancies, hydatidiform preeancerous growths, moles or other variety problems and a of other only through that can be discovered pathological general utility pathological examination. The medical exam g., ACOG, See, e. inations is Obstetric-Gynecologic clear. for Standards 1982) (5th (1982 Standards); Services 52 ed. ACOG National Abortion (NAF) (1981) (compliance oblig Federation Standards with standards atory for NAF good standing); member facilities to remain in Brief Curiae, Health Association as Amicus for Public American O. T. 81-185, 81-746, 81-1172, p. 29, (supporting Nos. n. 6 the NAF standards standards”). nonhospital constituting abortion facilities as “minimum standards ACOG’s time the District Court’s trial recom operative mended that a “tissue or review committee” should examine “all ACOG, obstetric-gynecologic operations.” tissue removed at Standards (4th 1974). Obstetric-Gynecologic Services 13 ed. current ACOG that, general surgical Standards state per also as rule for all services basis, ambulatory on formed an removed should be submitted to a “[t]issue Standards, pathologist for examination.” 1982 ACOG at 52. dissent, partial however, relies on the recent modification of Blackmun’s they apply provides these as “ex Standards abortions. ACOG now ception practice” mandatory pathologist examination Ibid. Not sur permissive. makes such examination for abortion tissue prisingly, change policy College. was controversial within See regarding 5 Record 799-800. exists “[n]o ACOG found that consensus case,” aspirated every though microscopic routine examination of tissue in in a recognized inquiries it the basis of made in 29 institutions —that —on majority microscopic performed of them in all examination cases. (June ACOG, Gynecologic Practice, Report of Item Committee #6.2.1 27-28, *11 488 subsequent pregnancies.
complications and their effect on Jr.); (testimony App. of Dr. Cates, Levin, See 72-73 Willard Ryan, Stubblefield, Monson, & Association Schoenbaum, Subsequent Pregnancy Loss, Induced Abortion with 243 (1980). pathology reports, 2495, M. A. 2499 J. A. Recorded complication reports, provide in concert with abortion a sta- studying complications. tistical basis for those Cf. Planned Danforth, 52, Parenthood Central Missouri v. 428 U. S. (1976). argue physician performing Plaintiffs that the the abortion pathologist qualified is as as a to make the examination. argument disregards requires This fact that Missouri performing pathologist examine tis- the—not —to every type surgery. Although this re- sue after almost quirement provision relating surgical procedures in is in a hospitals, procedures many within of the same included customarily performed outpatient Missouri statute are also in suggested why prudence No re- clinics. quired reason has been hospital equally appropriate in such should not be good impose Indeed, a clinic. there reason to respect performing stricter in this on clinics abor- standards hospitals.12 testimony than As District tions plaintiffs support position professional 12 The views that the find to their given whether that not all do not disclose consideration was fact clinics, clinics, particularly inadequately regulated conform to eth abortion Baird, See Bellotti v. generally accepted ical or medical standards. (1979) (Bellotti II) (minors “incompetent n. U. S. resort to Missouri clinics); Planned Parenthood Central unethical” abortion (1976) Danforth, 52, 91, J., (Stewart, concurring). n. 2 The Sun- U. S. special ques Chicago, reports, widespread Times of in a series of disclosed including practices Chicago, clinics in the failure to tionable Profiteers, pathology reports. Chicago proper obtain See The Abortion clear, therefore, Reprint 25-26 It is that a (Special Sun-Times necessary reasonably pathology requirement could conclude that a general hospitals. as abortion clinics well as judg- suggesting perspective” from we make a “comfortable pathol- constitutionally of a require ment that a State can the additional cost examination, ogy partial suggests dissent that we Blackmun’s *12 widely opinion ques medical differs indicates,
Court 749-750, 798-800, 845-847; 4 Record 5 Record 623; tion. See support supra. re for Missouri’s 11, n. There is substantial quirement. example, In this case, for Dr. Bernard Nathan- widely experienced practitioner, son, a abortion testified that pathologist requires 60,000 he a examination after each of the performed under his direction at the York abortions New Reproductive it Center Health. He considers for Sexual “absolutely necessary pathologist’s report to obtain a on each every specimen of or tissue removed from abortion any surgical procedure that from matter other which involves body.” App. the removal of tissue from the human 143-144. (testimony Keitges); id,., See also at 146-147 of Dr. 5 Record Schmidt).13 (testimony 798-799 of Dr. protection weighing
In the balance between of a woman’s comparatively pa- health and the small of additional cost a thologist’s say examination, we cannot that the Constitution requires that a State subordinate its interest in health to min- early of imize to this extent the cost abortions. Even in the regulations pregnancy, “[c]ertain weeks of that have no significant impact right [to on the of woman’s exercise her disregard unemployed the interests of “woman on welfare teen- Post, ager.” may likely at 498. But these women be those most to seek expensive practice the least clinic As of available. the standards medical may highest, reasonably such clinics not be State conclude pathologist’s particularly that a examination of important tissue is for their protection. Justice Blackmun’s partial appears suggest dissent 188.047 constitutionally infirm require microscopic because it does not examina tion, post, 496-497, point but regulation. that misses the is for performing need someone other than the independ clinic to make (Dr. judgment 12, ent medical supra; on the n. tissue. See 5 Record 750 Keitges, pathologist). Pierre It is for the reasonable assume independent that an pathologist likely perform microscopic is more performing Cove, examination than the Surgical doctor. H. See Pathol (1981) (“To ogy of the pathologist, Endometrium 28 abortions of and microscopically grossly sort are evaluated primary purpose for the diagnosis added). establishing a pregnancy”) (emphasis intrauterine justi- permissible abortion] where decide to have an City objectives.” by important Akron, fied state health supra, at 80-81. We think ante, at 430. See Danforth, significantly examination does not burden cost a tissue pregnant decision. The estimated cost woman’s abortion compliance plaintiff Reproductive Health Services was Supp., per performed, F. n. $19.40 pathologist’s light that a of the substantial benefits clearly justified. have, can this small cost examination unanimously upheld record- this Court Missouri’s Danforth, *13 keeping requirement in as “useful to the interest State’s protecting [as] female a re- citizens, the health of its involving expe- source that is relevant to decisions medical judgment,” the S., rience and 428 U. at 81.14 We view report comparable requirement pathology and as a as relatively insignificant Accordingly, burden. we reverse judgment Appeals Court of on issue. Y City legal Akron, As we noted in the relevant standards of respect parental-consent requirements in with to are not dis- pute. ante, 443 See at Bellotti v. U. 439; Baird, S. (1979) II) (Bellotti (plurality opinion); 640-642, id., 643-644 dissenting).15 at A 656-657 State’s interest (White, J., requirements 14 The Court also noted that added for con “[t]he Danforth officers, fidentiality, exception public with the sole health and for reten years, period length, per tion for seven not assist unreasonable S., suade us in our determination of the 428 constitutional limits.” U. safeguards reassuring 81. Missouri extends identical found Danforth 188.055.2, pathology reports §§ at issue here. See Mo. Rev. Stat. 1982). (Supp. 188.060 one, apparently open The dissenters believe that the issue here is an Post, they Bellotti II. expressed and adhere to the views at 503-504. Court, by majority But adopted those views have never been of this See H. L. majority expressed quite differing while a views. have Matheson, Bellotti II S., (1981); (plurality opinion); U. S. 398 U. (White, J., dissenting). 656-657
protecting requirement immature minors will sustain a of a parental judicial. or clear, consent either It is substitute, provide proce- that “the must an alternative however, whereby pregnant minor demonstrate dure that she is sufficiently mature to make the abortion decision herself immaturity, despite her an abortion would be in her best that, City The Akron, ante, interests.”16 at 439-440.17 issue of purely statutory here is one of construction: whether Mis- II Bellotti parental The plurality required also that the alternative to completed consent must “assure” that resolution of this issue “will be anonymity expedition provide opportu and sufficient an effective Id., nity Confidentiality for an abortion to be obtained.” at 644. here by statutory requirement is assured that allows the minor to use her 188.028.2(1) petition. (Supp. initials on the Mo. Rev. Stat. As 188.028.2(6) provides part: expedition appeals, of in relevant appeal “The given twenty-four notice intent to shall be within hours from appeal completed the date issuance of the order. record shall be appeal filing perfected days and the shall be within five from the notice appeal. regarding performance Because time the essence abortion, supreme shall, rule, provide court of this state court *14 expedited appellate appealed for review of cases under this section.” provides constitutionally We believe this the framework section for a judicial Immediately expediting proceedings. sufficient means of after statutory enactment, enjoined the effective date of the this District Court unemancipated pregnant required enforcement. No minor has been comply time, Thus, point with this in section. there has been no Supreme concerning need for the promulgate appellate Court to rules expedite review. There no reason to believe that Missouri will not any appeal prior opinions. consistent with the mandate in our 17 Matheson, supra, Cf. H. L. v. 406-407, 14, (upholding at and n. 411 parental requirement notification extending holding but not the to ma ture emancipated or or showing minors to immature minors such notifica interests). tion detrimental to their best The lower courts found that § requirement 2d, 873; 188.028’snotice was unconstitutional. 655 F. 483 Supp., F. at 701. The sought judgment State has not review that here. Thus, posture review, in in appears the which it for before this Court § 188.028 contains requirement parental no for notification.
492 that is consistent alternative judicial provides
souri standards.18 legal established these part, pro- in relevant 188.028.2,19 statute,
The Missouri vides: cause:
“(4) decree, good In the court shall the for the “(a) pur- rights the petition majority Grant abortion; or to the consenting pose the best interests of “(b) to be the Find the abortion abortion, setting minor and consent judicial give finding; forth the for so grounds “(c) forth the Deny petition, setting grounds is denied.” petition which §188.028.2(4) Courts20 to its authorizes Juvenile face,
On outlined the section. of the alternatives among any choose 18 age exempts “emancipated” women under the The Missouri statute also parental from alter requirement both from the consent and 18 judicial argue requirement proceeding. of a Plaintiffs that native disagree. “emancipated” vagueness, we word this context is void for but minor). Matheson, supra, H. L. v. (using at 407 word to describe Cf. upon Although emancipated turns question whether minor is case, of each individual the Missouri courts have facts circumstances determination, adopted general guide the term is one of rules to the Missouri common law. See Black general usage understanding (Mo. Cole, 1981) S., 397, App. (quoting v. 626 W. 2d 398 67 C. J. Parent S. of Heddy, Marriage In re (1950)); 276, p. and Child 811 535 S. W. 2d (Mo. (Mo. Wurth, 1976) (same); Wurth App. 313 S. W. 2d 1958) (Mo. (same), App. grounds, on other 2d rev’d 322 S. W. 4, supra. n. This See Court held unconstitutional Mis Danforth parental-consent requirement souri’s for all unmarried minors under age S., response decision, of 18. 428 U. 75. our Missouri enacted challenged shortly the section here. This new statute became effective before our decision in Bellotti II. *15 prior opinions We have indicated in a that minor should have access to Matheson, H. supra, (Pow L. v. “independent an decisionmaker.” at 420 J., concurring). provided judicial Missouri has ell, decisionmaker. We therefore need not a qualified independent consider whether and non II, Bellotti judicial decisionmaker appropriate. U.S., would be Cf. 643, n. 22. Appeals petition
The Court of concluded that a of the denial (c) permitted initially require in subsection “would the court emancipated to find that minor was not and was not ma- enough ture to make her own decision and that was not in her best interests.” 655 F. at 858. 2d, Plaintiffs interpretation contend that this is unreasonable. We do not agree. fairly possible,
Where courts should construe a statute danger unconstitutionality. Appeals avoid a The of Court provides deny permis- aware, was if the statute discretion to any “good arguably sion to a minor for it cause,” that would principles violate the that this Court has set Ibid. forth. It recognized, any exercising option, however, that before Juvenile Court must receive evidence “the emotional development, maturity, understanding intellect of the §188.028.2(8) 1982). (Supp. minor.” Mo. Rev. Stat. logical “findings court then reached the conclusion that petition supported by the ultimate denial of the must be showing ‘good F. 2d, cause.’” 655 at 858. The Court reasonably Appeals deny peti- found that a court could not good having tion “for cause” it unless first found—after re- required ceived the evidence—that minor was not mature enough to II, make her own decision. See Bellotti S.,U. (plurality opinion). at 643-644, 647-648 We conclude that Appeals correctly interpreted Court the statute and interpreted, §188.028, as avoids constitutional infirmities.21 argue that, light 188.028.2(4),
21 Plaintiffs also ambiguity as differing interpretations it, evidenced placed upon appropriate judicial course of restraint is abstention. This Court has found such an Baird, See Bellotti approach appropriate. 132, 428 U. 146-147 S. (1976) (Bellotti I). not, however, argue Ap Plaintiffs did the Court of in. peals abstain, proce that the court should and Missouri has no certification whereby dure questions statutory this Court can refer of state construction 861, Supreme 2d, 20; Court. F. 17 Wright, See 655 n. C. Miller, Cooper, A. & E. Federal p. Practice Procedure (1978 n. 29 and Supp. procedure “greatly simplified” Such our
l-H <1 Appeals, judgment as it invali- insofar of the Court The hospitalization require- Missouri’s second-trimester dated judicial-consent parental- upheld and the State’s ment and judgment invalidating provision, re- The is affirmed. report pathology the re- quirement for all abortions and aof the abortion of quirement attend a second that judgment upholding vacate the fetus is reversed. We viable by plain- expended attorney’s fees for all hours an award attorneys proceedings consistent with and remand tiffs’ (1983). Hensley Eckerhart, 461 U. S. v.
It is so ordered. Brennan, Justice Jus- Blackmun, with whom Justice Marshall, join, concurring tice Stevens in part. and dissenting part today in Akron Akron Center decision Court’s city p.
Reproductive Health, 416, invalidates the Inc., ante, hospitalization requirement Akron’s and a host other provisions infringe on decision terminate that a woman’s agree through pregnancy I her abortion. Missouri’s hospitalization requirement analy- is invalid under the Akron join opinion I I II of Parts sis, Justice Powell’s agree, present I however, cases. do not that the remain- satisfy challenged ing in these cases Missouri statutes in Akron constitutional standards set forth and the Court’s prior decisions.
I provides per- Missouri law that whenever sample formed, a tissue must be to a eli- submitted “board I, analysis supra, Bellotti Moreover, where, here, at 151. as a statute susceptible to a fair construction that obviates the need to have the state construction, saving courts render the is no reason for federal courts there to abstain.
gible pathologist” report. for or certified a Mo. Rev. Stat. §188.047 (Supp. requirement applies This to first- performed trimester abortions as well as to those later past pregnancy. perform- Our decisions establish that during ance of abortions the first trimester left must be by the Akron, “‘free of interference State.’” ante, 430, (1973). quoting Wade, Roe v. U. S. As we have every regulation in Akron, noted this does not mean that touching upon constitutionally first-trimester abortions is im- permissible. pass regulations muster, But to constitutional affecting significant first-trimester abortions must “have no impact right” on the of her woman’s exercise be must “justified by important objectives.” state health Akron, ante, 430; see at 489-490. ante, pathologist’s requirement report jus-
Missouri’s of a is not by important objectives. Although pathology tified health necessary examinations even be “useful and in some requires pathology ante, at cases,” 487, Missouri more than a pathology report; examination and a it demands that the performed report prepared by examination be and the a eligible pathologist” “board or certified rather than attending physician. Contrary to asser- Powell’s requirement report by pathologist ibid., tion, aof “generally accepted not in accord with medical standards.” accepted practice The routine medical the attend- (visual) ing physician perform gross examination of during Only physician tissue removed an abortion. if the de- sample tects abnormalities is there a need to send a tissue pathologist. College The American of Obstetricians and (ACOG) Gynecologists does not recommend an examination by pathologist every case: pregnancy,
“In the situation of elective termination of attending description should record a gross products. embryonic Unless definite or fetal parts products interrup- can identified, of elective pathologist for pregnancy to a be submitted must tions microscopic gross examination. Aspirated to ensure should be examined
“. tissue . . prior patient’s parts presence of villi or fetal facility. parts fetal not If villi or are from the release certainty, specimen must be the tissue identified with pathologic . . . .” ACOG, examination further sent for (5th Obstetric-Gynecologic Services Standards *18 1982).1 ed. Federation believe that such the National Abortion
Nor does necessary: examination is an grossly of the examined time
“All tissue must be by procedure physician or trained assistant a in the chart. absence and the results recorded upon gross parts placenta or examination, visible fetal power tissue be examined under a low obtained microscope for the of villi. If examination detection be inconclusive, the tissue should sent to the nearest pathology laboratory microscopic for suitable examina- (1981) tion.” National Abortion Federation Standards 6 deleted). (emphasis Appeals pointed expert out,
As the Court of there was tes- timony nonpathologist physician capable trial a that is as performing adequate gross patholo- examination as a gist, and that the “abnormalities which are of concern” are ACOG, 1 See also Obstetric-Gynecologic Standards for Services 66 (1982): “Tissue removed pathologist should be submitted to a for examina- exception practice ... An tion. inbe elective terminations of pregnancy in embryonic which definitive parts or fetal can be identified. instances, In such description gross should record a products. embryonic identified, Unless definite parts or fetal can be products interruptions of elective pregnancy must be submitted to a pathologist gross microscopic examination.” readily by physician. detectable a 655 F. 2d n. (CA8 1981); App. pathologist may see 135.2 While a perform microscopic better able to a examination, Missouri require microscopic law does not examination unless “fetal parts placenta are not identified.” 13 Mo. Admin. Code 50-151.030(1)(1981). Thus, the effect of the Missouri stat- require pathologist perform gross ute is to the initial normally responsibility examination, which is of the at- tending physician pathologist’s and which will often make the unnecessary. services
On the record before Ius, must conclude that demonstrating patholo- [the has not “met its burden of gist requirement] important further[s] health-related State Akron, ante, concerns.” at 430.3 There has been no show- ing pathologist that tissue examinations do more to protect by nonpathologist physi- health than examinations require pathologists’ reports cian. Missouri does not surgical procedures performed other in clinics, or for surgery performed hospitals. minor 13 Mo. Admin. Code 50-20.030(3)(A)(7)(1977). agree I Moreover, cannot *19 pathologist requirement that Missouri’s Justice Powell significant impact” ante, has “no 489, at on a woman’sexercise right undisputed of her to an abortion. It is that this re- may quirement increase the cost a first-trimester abortion (WD by Supp. 700, as much as 483 F. n. 48 679, See $40. 1980). may Although insignificant Mo. this increase seem say perspective, from I it the Court’s comfortable cannot that equally insignificant every seeking to an abortion. woman findings point, noting only that some 2 The District Court made no on this “pathology had testified that should be done” witnesses for (WD 1980). 679, 700, Mo. every Supp. 483 F. n. 49 abortion. 3 support “ques appears Powell to draw from the facts that clinics, “the occur at some abortion while at others practices” tionable Ante, 489, may highest.” at practice standards of medical . . . not be evidence, practices however, questionable no that such n. 12. There is occur in Missouri.
498 unemployed teenager, on welfare or
For the woman beyond price may put the of an abortion additional cost well Harper Virginia Elections, Board 383 reach.4 Cf. (1966) ($1.50 poll U. S. tax “excludes those unable (1959) pay”); Ohio, 252, 255, Burns v. 360 U. S. ($20 appellate “foreclose^] docket fee access” review indigents). In Parenthood Central Missouri v. Danforth, Planned (1976), the that the minor
428 U. S. Court warned upheld “perhaps recordkeeping requirements in that case Today impermissible approach[ed] in Akron, limits.” we on first-trimester abortions have struck down restrictions “may providing abor- that in some cases add cost ante, 449-451. 447-448; see Missouri’s Ante, tions.” report unquestionably requirement pathologist’s adds significantly providing abortions, and to the cost of Missouri has not that it serves substantial health-related shown purpose. I would hold that con- circumstances, Under these have been exceeded. stitutional limits
hH performed Missouri, after via- an abortion bility only necessary preserve if the life or health §188.030.1 (Supp. woman. Mo. Rev. Stat. When performed, provides postviability Missouri law abortion is [must be] [second] . . . who “there attendance price pathologist’s A fee increase the of a first-trimester abor $40 (cost (1981) 848, 869, n. of first- tion 20% or more. 655 F. 2d See $170); Jaffe, F. Reproductive trimester abortion at Health Services Lee, Morality Pol Lindheim, P. Politics: Private and Public B. & Abortion *20 (cost (1981) approxi icy ranges of clinic abortion from 36 first-trimester Henshaw, Services, Freestanding Clinics: mately $235); to Abortion $185 (1982) (average Fees, Family Perspectives Structure, Planning 14 255 $190); National Abortion Federation cost of first-trimester clinic abortion is (NAF (1982/1983) charge Membership Directory 18-19 clinics in Missouri abortion). to for first-trimester $180 $225
499 provide shall take control of and immediate medical care for a child born as result of the abortion.” Mo. Rev. Stat. 1982). §188.030.3 (Supp. recognized The Court in Roe v. pre- Wade, U. at S., 164-165, that a State’s interests in serving protecting potentiality maternal health and of may justify regulation prohibition human life and even postviability except necessary preserve abortions, those regulations governing the life and health of the mother. But postviability stage preg- abortions, like those at other nancy, recognized must be “tailored to the state interests.” (1981) Id., 165; see H. L. v. S. Matheson, U. (“statute plainly important [and] serves state interests, is narrowly protect only interests”); drawn to those Roe, (“legislative narrowly U. S., at 155 enactments must be express only legitimate drawn to stake”). state interests at
A second-physician requirement upheld in these cases “reasonably compel- on the basis that it furthers the State’s ling protecting interest lives viable fetuses.” Ante, agree at 486. While I that a second indeed aid preserving type alive, the life a fetus born aid only possible when abortion method used is one that Although ordinarily requires result a live birth. Missouri physician performing postviability to use the likely preserve abortion method most fetal this re- life, apply present striction does not when this method “would greater risk the life and Mo. Rev. health woman.” §188.030.2 (Supp. Stat.
The District Court found that the dilatation and evacuation (D&E) no survival, method of abortion entails chance of fetal and that it will the method of choice some nevertheless be postviability cases, abortions. some women who need preclude will words, other maternal health considerations procedures might use of result a live birth. *21 is performed, F. at 694.5 When D&E abortion Supp., com- to further the State’s nothing second can do physician in life. His potential presence interest pelling protecting is The thus superfluous. second-physician requirement in overbroad and a burden on women cases where “imposes by not of survival of the justified any possibility burden is 2d, fetus.” 655 F. at 865-866. in- believes that the State’s apparently Powell life in justifies requir-
terest in preserving potential all abortions because postviability a second ing physician other than result live births. some methods D&E to at- But fact cannot a second justify physician requiring nonexist- abortion at which the chance a live birth is tend an in ad- of method will be made presumably ent. The choice when need for a second vance,6 physician disappears testimony District Court relied on the of Doctors Robert Crist Doctor testified that some instances abortion Richard Schmidt. Crist by “absolutely than would contraindicated” methods other D&E condition, 438-439, example giving the of a recent woman’s health 3 Record hemolytic aggravated the use patient anemia that would have been methods, id., labor-inducing at 428. prostaglandins or other very be” situations “[t]here Doctor Schmidt testified that well would be used because other methods were contraindicated. which D&E previously that a Although had testified 5 Record 836. Doctor Schmidt inconceivable,” this was in re postviability D&E abortion was “almost attorney regarding D&E by the whether sponse question to a State’s contraindica possibility that there extreme “[a]bsent would be used Id., saline, hysterotomy.” or of prostaglandins the use of tion for testimony apparently Any were inconsistencies Doctor Schmidt’s 787. plaintiffs’ by the in the favor. resolved District Court finding upheld factual Appeals The Court of the District Court’s postviability D&E for require would the use of health reasons sometimes 2d, exceptional circum 655 F. at 865. Absent the most abortions. stances, findings in which the do not review District Court’s factual we 507, 512, Finkel, 445 Appeals has concurred. Branti v. U. S. Court (1980). n. 6 likely requiring physician select the method most In addition to life, long presents greater pregnant no risk to the preserve fetal so as it “certify writing woman, requires that the avail- Missouri *22 the woman’s health requires that the choice be Be- D&E. the cause statute is not tailored to the protect legiti- State’s mate I interests, would hold it invalid.7
B In addition, I would the hold that statute’s failure to pro- vide a clear exception emergency situations un- renders it constitutional. As Justice recognizes, ante, Powell n. 8, an emergency arise which could be delay danger- ous to the life or health A of the woman. second physician not always be available such a the situation; yet stat- ute to one. It appears states, require unqualified terms, that a postviability abortion “shall be . . performed . only when is in there attendance” second who “shall physician take control of” child born as a result of the abortion, it certain duties on imposes “the this physician required by §188.080.3 section to be in Mo. attendance.” Rev. Stat. 1982) added). the (Supp. (emphasis By attendance requiring physician a second even when the be resulting delay may harmful to the health of the im- woman, the statute pregnant to fails make clear “that the woman’s life and permissibly techniques choosing method or able considered and reasons technique employed.” (Supp. method or Mo. Rev. Stat. 188.030.2 This that the choice of will one. ensures method reasoned argues second-physician justified requirement that its even used, specifically excepted when D&E D&E “[i]f because statute procedures, frequently encouraged would be to use it more to abortionists fetus, expense physician, pre avoid of a second to ensure dead presence professional malpractice vent the second to observe or the procedure safety viewpoint, choice questionable of a from a a fetus- procedure, awakening for the destroying to avoid their own to concern 81-1623, p. re newborn.” Brief for Petitioners No. 44. The Court Bolton, jected purported physician justification for a in Doe v. second (1973): 179, 199 State, “If a is rec U. S. is licensed he acceptable ognized by capable exercising judgment. the State as clinical this, professional deprivation If he of his license are fails censure and by co-practitioners no Required acquiescence available remedies. has unduly infringes on the patient’s rational connection with a needs and physician’s right practice.”
health must always prevail over the fetus’ life and health conflict.” Colautti Franklin, when 439 U. they S. (1979). to cure this defect attempts by asserting Powell statute, that the final clause of the the two physi- requiring cians preserve to “take all reasonable ... the life and steps child; health viable unborn it does not provided risk to life pose woman,” increased or health *23 could be construed to abor- permit emergency postviability Ante, tions n. 485, without a second 8. This physician. to contrary statute; construction the of the plain language the relies the clause which Justice refers to upon Powell duties of both the during performance abor- physicians tion, way but it no that the second suggests physician may with. dispensed since construction Moreover, proposed Powell’s Missouri,8 is not on the courts of binding physician perform- an on it abortion cannot with ing emergency postviability rely The degree confidence. statute thus remains imper- it fails to inform he missibly vague; physician the whether with an may proceed postviability emergency, or whether he must wait for a second even if the physician further the imperiled by woman’s life health will be delay. on the This well have a severe effect vagueness may chilling who the need for a physician perceives patient’s postviability Franklin, Colautti v. abortion. we considered a statute to physician that failed to whether it specify “require[d] health make a ‘trade-off’ between woman’s and additional S., of fetal survival.” 439 U. at 400. percentage points magni- there that “where duties of this conflicting Court held with State, least, proceed tude are at the must involved, it possible before greater precision subject physician 8 requisite construction, since “Only supply courts can [Missouri] legisla jurisdiction authoritatively to construe state of course ‘we lack Gooding Wilson, 518, (1972), United quoting tion.’” v. S. 520 405 U. (1971). Thirty-seven Photographs, States v. U. S. Id., at 400-401.9 I would criminal sanctions.” apply here, reasoning and hold Missouri’s second-physician require- ment invalid as ground well.10
I—I Missouri law prohibits performance an abortion on an minor unemancipated absent parental consent or a court order. Mo. Rev. Stat. 188.028 (Supp. today,
Until the Court has never upheld “a requirement a consent substitute, either parental or judicial,” ante, at 491. In Planned Parenthood Central Missouri v. Danforth, S., U. the Court invalidated a re- parental-consent on the quirement that “the State does ground not have the constitutional authority give a third party absolute, and over the possibly veto decision of the arbitrary, his patient terminate the patient’s pregnancy, regardless In Bellotti reason for the consent.” withholding (1979) (Bellotti Baird, II), eight Justices U. S. 622
9 physician A who comply fails to second-physician Missouri’s re *24 quirement penalties faces criminal and the loss of his license. Mo. Rev. (1978 188.065, §§ Supp. Stat. 188.075 I grounds, 10 Because would hold the statute unconstitutional on these I question second-physician do not reach the whether require Missouri’s impermissibly ment doctor-patient relationship. interferes with I note, however, require that Missouri does not of phy attendance a second procedure, including sician at other premature medical birth. There testimony infant, product was at trial that a newborn of whether the abortion, ordinarily responsibility normal birth or an remains the of the 133; he physician App. woman’s until turns its care over to another. (5th ACOG, ed., Obstetric-Gynecologic see Standards for Services 1982) (“The baby responsible individual who delivers the for the immedi post-delivery person ate care of the until another assumes this newborn duty”).
This responsibility allocation of makes sense. Consultation and team- practice, operating pa- work are in an fundamental medical but room a split-second may depend by physician. tient’s life or health on decisions responsibility If physicians and control must be shared between two authority unclear, precious lines of moments be lost to the detri- ment both woman and child.
agreed permitting judicial that a Massachusetts statute to have was un- veto of a mature minor’s decision an abortion J.); (opinion 649-650 id., constitutional. See at Powell, J.). (opinion Although id., at 654-656 four Stevens, appropriately II Justices stated in Bellotti that an structured judicial-consent requirement would constitutional, id., J.), (opinionof Powell, 647-648 essary this statement was not nec- major- result of the case and did not command a to the ity. any judicial-consent Four other Justices concluded that statute suffer from the same flaw the Court identified would give party it a third an absolute veto over would Danforbh: patient. S., and his decision U. J.). (opinion Stevens, 655-656
I to the views expressed by continue adhere II: Bellotti Stevens right
“It is in the inherent make the abortion decision right may public scrutiny that the be exercised without contrary opinion sovereign defiance of the parties. practical matter, As I or other third ... would judicial proceedings suppose that the need to commence legal impose in order to obtain a abortion would a burden great probably greater im- as, than, at least as posed the minor child the need to obtain the con- parent. met, Moreover, sent of the once this burden is only provided judge’s for the standard decision the provides minor. little best interest of the That standard judge, guidance neces- and his decision must real sarily personal and mores reflect and societal values particularly upon when whose enforcement minor— contrary her own and reasonable decision— informed *25 fundamentally privacy interests under- at odds with lying protection her afforded to deci- the constitutional Ibid, omitted). (footnote sion.” 1982) §188.028 permits (Supp. Rev. Because Mo. Stat. judicial parental an a minor’s decision to obtain veto of hold it abortion, I unconstitutional. would O’Connor, with whom Justice White and Justice Rehnquist in in join, concurring judgment part in dissenting part. my in For reasons stated dissent in Akron v. Akron Reproductive p. ante, Health, I believe that Center for imposed by hospitalization requirement the second-trimester §188.025 impose not an on does undue burden Assuming, arguendo, the limited right undergo an abortion. that the requirement an it burden, was undue would nevertheless “reasonably preservation protection relat[e] (1973). Wade, maternal health.” Roe v. U. S. judgment I therefore dissent from the Court’s that requirement is unconstitutional. agree second-physician requirement
I that the contained in §188.030.3 possesses is constitutional because the State compelling protecting preserving interest fetal life, throughout I but believe that this state interest is extant pregnancy. judgment I therefore concur of the Court. agree pathology-report requirement imposed by
I that imposes 188.047 is constitutional because it no undue bur- right undergo den on the limited an I abortion. Because validity requirement do not believe that the of this is contin- gent any way pregnancy on the trimester of in which it is imposed, judgment I concur in the of the Court.
Assuming, arguendo, impose pa- that the State cannot undergo rental veto on the minor decision of a an abortion, agree parental-consent provision I contained pro- 188.028is I constitutional. that the However, believe imposes vision is valid because it on no undue burden right undergo minor that a have to I abortion. con- judgment cur in Court this issue.
I also concur in the Court’s decision to vacate and remand attorney’s light Hensley on the issue of fees Ecker (1983). 461 U. hart, S.