Lead Opinion
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
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,
HH
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
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,”
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.
The Court of Appeals for the Eighth Circuit affirmed, with one exception not relevant to this appeal.
II
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.
A
The Act’s preamble, as noted, sets forth “findings” by the Missouri Legislature that “[t]he life of each human being begins at conception,” and that “[ujnborn children have pro-tectable 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.
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 physi-
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,
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,
‘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.
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
B
Section 188.210 provides that “[i]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.”
As we said earlier this Term in DeShaney v. Winnebago County Dept. of Social Services,
“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 .
Relying on Maher, the Court in Poelker v. Doe,
More recently, in Harris v. McRae,
The Court of Appeals distinguished these cases on the ground that “[t]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.”
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,
The Court of Appeals sought to distinguish our cases on the additional ground that “[t]he evidence here showed that all of the public facility’s costs in providing abortion services are recouped when the patient pays.”
“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.
C
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
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.
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,
D
Section 188.029 of the Missouri Act provides:
“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.”12
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.
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,
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
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 “2314 to 24 weeks gestation is the earliest point in pregnancy where a reasonable possibility of via
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.
In Colautti v. Franklin,
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[e] . . . the dialogue between the woman and her physician.” Thornburgh v. American College of Obstetricians and Gynecologists,
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.
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 Thorn-burgh, 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. “[T]he State’s interest, if compelling after viability, is equally compelling before viability.” Thornburgh,
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
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,
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
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 Ami-cus 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.
Reversed.
Notes
After Roe v. Wade, the State of Missouri’s then-existing abortion regulations, see Mo. Rev. Stat. §§559.100, 542.380, and 563.300 (1969), were declared unconstitutional by a three-judge federal court. This Court summarily affirmed that judgment. Danforth v. Rodgers,
In June 1974, the State enacted House Committee Substitute for House Bill No. 1211, which imposed new regulations on abortions during all stages of pregnancy. Among other things, the 1974 Act defined “viability,” § 2(2); required the written consent of the woman prior to an abortion during the first 12 weeks of pregnancy, § 3(2); required the written consent of the woman’s spouse prior to an elective abortion during the first 12 weeks of pregnancy, § 3(3); required the written consent of one parent if the woman was under 18 and unmarried prior to an elective abortion during the first 12 weeks of pregnancy, § 3(4); required a physician performing an abortion to exercise professional care to “preserve the life and health of the fetus” regardless of the stage of pregnancy and, if he should fail that duty, deemed him guilty of manslaughter and made him liable for damages, § 6(1); prohibited the use of saline amniocentesis, as a method of abortion, after the first 12 weeks of pregnancy, § 9; and required certain record-keeping for health facilities and physicians performing abortions, §§ 10, 11. In Planned Parenthood of Central Mo. v. Danforth,
In 1979, Missouri passed legislation that, inter alia, required abortions after 12 weeks to be performed in a hospital, Mo. Rev. Stat. § 188.025 (Supp. 1979); required a pathology report for each abortion performed, § 188.047; required the presence of a second physician during abortions performed after viability, § 188.030.3; and required minors to secure paren
The Act defines “gestational age” as the “length of pregnancy as measured from the first day of the woman’s last menstrual period.” Mo. Rev. Stat. § 188.015(4) (1986).
The State did not appeal the District Court’s invalidation of the Act’s “informed consent” provision to the Court of Appeals,
Section 1.205 provides in full:
“1. The general assembly of this state finds that:
“(1) The life of each human being begins at conception;
“(2) Unborn children have protectable interests in life, health, and well-being;
“(3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.
“2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the
“3. As used in this section, the term ‘unborn children’ or ‘unborn child’ shall include all unborn child [sic] or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.
“4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.”
Judge Arnold dissented from this part of the Court of Appeals’ decision, arguing that Missouri’s declaration of when life begins should be upheld “insofar as it relates to subjects other than abortion,” such as “creating causes of action against persons other than the mother” for wrongful death or extending the protection of the criminal law to fetuses.
Appellees also claim that the legislature’s preamble violates the Missouri Constitution. Brief for Appellees 23-26. But the considerations discussed in the text make it equally inappropriate for a federal court to pass upon this claim before the state courts have interpreted the statute.
The statute defines “public employee” to mean “any person employed by this state or any agency or political subdivision thereof.” Mo. Rev. Stat. § 188.200(1) (1986). “Public facility” is defined 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).
A different analysis might apply if a particular State had socialized medicine and all of its hospitals and physicians were publicly funded. This case might also be different if the State barred doctors who performed abortions in private facilities from the use of public facilities for any purpose. See Harris v. McRae,
The suit in Poelker was brought by the plaintiff “on her own behalf and on behalf of the entire class of pregnant women residents of the City of St. Louis, Missouri, desiring to utilize the personnel, facilities and services of the general public hospitals within the City of St. Louis for the termination of pregnancies.” Doe v. Poelker,
In a separate opinion, Judge Arnold argued that Missouri’s prohibition violated the First Amendment because it “sharply diseriminate[s] between kinds of speech on the basis of their viewpoint: a physician, for example, could discourage an abortion, or counsel against it, while in a public facility, but he or she could not encourage or counsel in favor of it.”
While the Court of Appeals did not address this issue, the District Court thought that the definition of “public funds” in Mo. Rev. Stat. § 188.200 (1986) “certainly is broad enough to make ‘encouraging or counseling’ unlawful for anyone who is paid from” public funds as defined in § 188.200.
The Act’s penalty provision provides that “[a]ny person who contrary to the provisions of sections 188.010 to 188.085 knowingly performs . . . any abortion or knowingly fails to perform any action required by [these] sections . . . shall be guilty of a class A misdemeanor.” Mo. Rev. Stat. § 188.075 (1986).
See Black’s Law Dictionary 928 (5th ed. 1979) (“Necessary. This word must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought”).
The Court’s subsequent cases have reflected this understanding. See Colautti v. Franklin,
For example, the Court has held that a State may require that certain information be given to a woman by a physician or his assistant, Akron v. Akron Center for Reproductive Health, Inc.,
Concurrence Opinion
concurring in part and concurring in the judgment.
I concur in Parts Í, II-A, II-B, and II-C of the Court’s opinion.
I
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[e] 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 “pro-tectable 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,
Similarly, it seems to me to follow directly from our previous decisions concerning state or federal funding of abortions, Harris v. McRae,
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.,
II
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.”
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 reexamine the constitutional validity of Roe v. Wade,
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.
Appellees suggest that the interpretation of § 188.029 urged by the State may “virtually eliminat[e] 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.
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
“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.
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
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.,
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,”
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.
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.
Concurrence Opinion
concurring in part and concurring in the judgment.
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,
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.
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 “‘deciding] 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 Con
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
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.
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.
That question, compared with the question whether we should reconsider and reverse Roe, is hardly worth a footnote, but I think Justice O’Connor answers that incorrectly as well. In Roe v. Wade,
Justice O’Connor would nevertheless uphold the law because it “does not impose an undue burden on a woman’s abortion decision.” Ante, at 530. This conclusion is supported by the observation that the required tests impose only a marginal cost on the abortion procedure, far less of an increase than the cost-doubling hospitalization requirement invalidated in Akron v. Akron Center for Reproductive Health, Inc.,
Similarly irrational is the new concept that Justice O’Connor introduces into the law in order to achieve her result, the notion of a State’s “interest in potential life when viability is possible.” Ante, at 528. Since “viability” means the mere possibility (not the certainty) of survivability
Concurrence Opinion
with whom Justice Brennan and Justice Marshall join, concurring in part and dissenting in part.
Today, Roe v. Wade,
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 “modified] and narrowed]. ” 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.
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.
I dissent.
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.
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,
A
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 áddress 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.
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,
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.,
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.
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,
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
B
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,
1
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
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 — tri
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,
2
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,
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
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.
3
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.
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:
“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. . . . [UJnless 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, ifthere 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).
See also Roe,
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
C
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
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
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.
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,
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,
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 undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history. Although the doctrine of stare decisis applies with somewhat diminished force in constitutional cases generally, ante, at 518, even in ordinary constitutional cases “any departure from . . . stare decisis demands special justification.” Arizona v. Rumsey,
This comes at a cost. The doctrine of stare decisis “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.”
For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.
Contrary to the Court, I do not see how the preamble, § 1.205, realistically may be construed as “abortion-neutral.” It declares that “[t]he life of each human being begins at conception” and that “[ujnborn children have protectable interests in life, health, and well-being.” Mo. Rev. Stat. §§ 1.205.1(1) and (2) (1986). By the preamble’s specific terms, these declarations apply to all of Missouri’s laws which, in turn, are to be interpreted to protect the rights of the unborn to the fullest extent possible under the Constitution of the United States and the decisions of this Court. § 1.205.2. As the Court of Appeals concluded, the Missouri Legislature “intended its abortion regulations to be understood against the backdrop of its theory of life.”
In my view, a State may not expand indefinitely the scope of its abortion regulations by creating interests in fetal life that are limited solely by reference to the decisional law of this Court. Such a statutory scheme, whose scope is dependent on the uncertain and disputed limits of our holdings, will have the unconstitutional effect of chilling the exercise of a woman’s right to terminate a pregnancy and of burdening the freedom of health professionals to provide abortion services. In this case, moreover, because the preamble defines fetal life as beginning upon “the fertilization of the ovum of a female by a sperm of a male,” § 188.015(3), the provision also unconstitutionally burdens the use of contraceptive devices, such as the IUD and the “morning after” pill, which may operate to prevent pregnancy only after conception as defined in the statute. See Brief for Association of Reproductive Health Professionals et al. as Amici Curiae 30-39.
The Court upholds §§ 188.210 and 188.215 on the ground that the constitutionality of these provisions follows from our holdings in Maher v. Roe,
Whatever one may think of Maher, Poelker, and Hams, however, they most certainly do not control this case, where the State not only has withdrawn from the business of abortion, but has taken affirmative steps to
The sweeping scope of Missouri’s “public facility” provision sharply distinguishes this case from Maher, Poelker, and Harris. In one of those cases, it was said: “The State may have made childbirth a more attractive alternative . . . but it . . . imposed no restriction on access to abortions that was not already there.” Maher,
The difference is critical. Even if the State may decline to subsidize or to participate in the exercise of a woman’s right to terminate a pregnancy, and even if a State may pursue its own abortion policies in distributing public benefits, it may not affirmatively constrict the availability of abortions by defining as “public” that which in all meaningful respects is private. With the certain knowledge that a substantial percentage of private health-care providers will fall under the public facility ban, see Brief for National Association of Public Hospitals as Amicus Curiae 10-11, Missouri does not “leav[e] a pregnant woman with the same choices as if the State
Indeed, Justice O’Connor appears to recognize the constitutional difficulties presented by Missouri’s “public facilities” ban, and rejects respondents’ “facial” challenge to the provisions on the ground that a facial challenge cannot succeed where, as here, at least some applications of the challenged law are constitutional. Ante, at 523-524. While I disagree with this approach, Justice O’Connor’s writing explicitly leaves open the possibility that some applications of the “public facilities” ban may be unconstitutional, regardless of Maher, Poelker, and Harris.
I concur in Part II-C of the Court’s opinion, holding that respondents’ challenge to § 188.205 is moot, although I note that the constitutionality of this provision might become the subject of relitigation between these parties should the Supreme Court of Missouri adopt an interpretation of the provision that differs from the one accepted here. See Deakins v. Monaghan,
1 consider irrefutable Justice Stevens’ discussion of this interpretive point. See post, at 560-563.
The District Court found that “the only method to evaluate [fetal] lung maturity is by amniocentesis,” a procedure that “imposes additional significant health risks for both the pregnant woman and the fetus.”
I also agree with the Court of Appeals,
The plurality never states precisely its construction of §188.029. I base my synopsis of the plurality’s views mainly on its assertion that the entire provision must be read in light of its requirement that the physician act only in accordance with reasonable professional judgment, and that the provision imposes no requirement that a physician perform irrelevant or dangerous tests. Ante, at 514-515. To the extent that the plurality may be reading the provision to require tests other than those that a doctor, exercising reasonable professional judgment, would deem necessary to a finding of viability, the provision bears no rational relation to a legitimate governmental interest, and cannot stand.
As convincingly demonstrated by Justice O’Connor, ante, at 527-531, the cases cited by the plurality, are not to the contrary. As noted by the plurality, in both Colautti v. Franklin,
I also see no conflict with the Court’s holding in Akron v. Akron Center for Reproductive Health, Inc.,
The plurality, ignoring all of the aforementioned cases except Gris-tvold, responds that this case does not require consideration of the “great issues” underlying this ease because Gristvold, “unlike Roe, did not purport to adopt a whole framework ... to govern the cases in which the asserted liberty interest would apply.” Ante, at 520. This distinction is highly ironic. The Court in Roe adopted the framework of which the plurality complains as a mechanism necessary to give effect both to the constitutional rights of the pregnant woman and to the State’s significant interests in maternal health and potential life. Concededly, Griswold does not adopt a framework for determining the permissible scope of state regulation of contraception. The reason is simple: in Grisivold (and Eisenstadt), the Court held that the challenged statute, regulating the use of medically safe contraception, did not properly serve any significant state interest. Accordingly, the Court had no occasion to fashion a framework to accommodate a State’s interests in regulating contraception. Surely, the plurality is not suggesting that it would find Roe unobjectionable if the Court had forgone the framework and, as in the contraception decisions, had left the State with little or no regulatory authority. The plurality’s focus on the framework is merely an excuse for avoiding the real issues embedded in this case and a mask for its hostility to the constitutional rights that Roe recognized.
The difference in the Akron and Simopoulos regulatory regimes is stark. The Court noted in Akron that the city ordinance requiring that all second-trimester abortions be performed in acute-care hospitals undoubtedly would have made the procurement of legal abortions difficult and often prohibitively expensive, thereby driving the performance of abortions back underground where they would not be subject to effective regulation. Such a requirement obviously did not further the city’s asserted interest in maternal health.
Notably, neither the plurality nor Justice O’CONNOR advances the now-familiar catch-phrase criticism of the Roe framework that because the point of viability will recede with advances in medical technology, Roe “is clearly on a collision course with itself.” See Akron,
Writing for the Court in Akron, Justice Powell observed the same phenomenon, though in hypothetical response to the dissent in that ease: “In sum, it appears that the dissent would uphold virtually any abortion regulation under a rational-basis test. It also appears that even where heightened scrutiny is deemed appropriate, the dissent would uphold virtually any abortion-inhibiting regulation because of the State’s interest in preserving potential human life. . . . This analysis is wholly incompatible with the existence of the fundamental right recognized in Roe v. Wade.’’
The plurality claims that its treatment of Roe, and a woman’s right to decide whether to terminate a pregnancy, “hold[s] true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not.” Ante, at 521. This is unadulterated nonsense. The plurality’s balance matches a lead weight (the State’s allegedly compelling interest in fetal life as of the moment of conception) against a feather (a “liberty interest” of the pregnant woman that the plurality barely mentions, much less describes). The plurality’s balance — no balance at all — places nothing, or virtually nothing, beyond the reach of the democratic process.
Justice Scalia candidly argues that this is all for the best. Ante, at 532. I cannot agree. “The very purpose of a Bill of Rights was to with
Cf. South Carolina v. Gathers,
Moreover, as Justice Powell wrote for the Court in Akron: “There are especially compelling reasons for adhering to stare decisis in applying the principles of Roe v. Wade. That case was considered with special care. It was first argued during the 1971 Term, and reargued — with extensive
Concurrence Opinion
concurring in part and dissenting in part.
Having joined Part II-C of the Court’s opinion, I shall not comment on § 188.205 of the Missouri statute. With respect to the challenged portions of §§ 188.210 and 188.215, I agree with Justice Blackmun, ante, at 539-541, n. 1 (concurring in part and dissenting in part), that the record identifies a sufficient number of unconstitutional applications to support the Court of Appeals’ judgment invalidating those provisions. The reasons why I would also affirm that court’s invalidation of § 188.029, the viability testing provision, and §§ 1.205.1(1), (2) of the preamble,
h — I
It seems to me that in Part II-D of its opinion, the plurality strains to place a construction on § 188.029
I am unable to accept Justice O’Connor’s construction of the second sentence in § 188.029, however, because I believe it is foreclosed by two controlling principles of statutory interpretation. First, it is our settled practice to accept “the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state-law issue without such guidance might have justified a different conclusion.” Bishop v. Wood,
My interpretation of the plain language is supported by the structure of the statute as a whole, particularly the preamble, which “finds” that life “begins at conception” and further commands that state laws shall be construed to provide the maximum protection to “the unborn child at every stage of development.” Mo. Rev. Stat. §§1.205.1(1), 1.205.2 (1986). I agree with the District Court that “[ojbviously, the purpose of this law is to protect the potential life of the fetus, rather than to safeguard maternal health.”
rH HH
The Missouri statute defines “conception as the fertilization of the ovum of a female by a sperm of a male,” Mo. Rev. Stat. § 188.015(3) (1986), even though standard medical texts equate “conception” with implantation in the uterus, occurring about six days after fertilization.
To the extent that the Missouri statute interferes with contraceptive choices, I have no doubt that it is unconstitutional under the Court’s holdings in Griswold v. Connecticut,
“[I]n Griswold v. Connecticut,381 U. S. 479 , the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in [Ferguson v.] Skrupa, [372 U. S. 726 (1963),] the Court’s opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. So it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the ‘liberty’ that is protected by the Due Process Clause of the Fourteenth Amendment. As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.
“Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia,388 U. S. 1 , 12 [(1967)]; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, [268 U. S. 510 (1925)]; Meyer v. Nebraska, [262 U. S. 390 (1923)]. See alsoPrince v. Massachusetts, 321 U. S. 158 , 166 [(1944)]; Skinner v. Oklahoma,316 U. S. 535 , 541 [(1942)]. As recently as last Term, in Eisenstadt v. Baird,405 U. S. 438 , 453 [(1972)], we recognized ‘the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. ‘Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters,268 U. S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska,262 U. S. 390 (1923).’ Abele v. Markle,351 F. Supp. 224 , 227 (Conn. 1972).
“Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.” (Emphasis in original; footnotes omitted.)8
One might argue that the Griswold holding applies to devices “preventing conception,”
Indeed, I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution. This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, see McGowan v. Maryland,
My concern can best be explained by reference to the position on this issue that was widely accepted by the leaders of the Roman Catholic Church for many years. The position is summarized in a report, entitled “Catholic Teaching On Abortion,” prepared by the Congressional Research Service of the Library of Congress. It states in part:
“The disagreement over the status of the unformed as against the formed fetus was crucial for Christian teaching on the soul. It was widely held that the soul was not present until the formation of the fetus 40 or 80 days after conception, for males and females respectively. Thus, abortion of the ‘unformed’ or ‘inanimate’ fetus (from anima, soul) was something less than true homicide, rather a form of anticipatory or quasi-homicide. This view received its definitive treatment in St. Thomas Aquinas and became for a time the dominant interpretation in the Latin Church.
“For St. Thomas, as for mediaeval Christendom generally, there is a lapse of time — approximately 40 to 80 days — after conception and before the soul’s infusion....
“For St. Thomas, ‘seed and what is not seed is determined by sensation and movement.’ What is destroyed in abortion of the unformed fetus is seed, not man. This distinction received its most careful analysis in St. Thomas. It was the general belief of Christendom, re-fleeted, for example, in the Council of Trent (1545-1563), which restricted penalties for homicide to abortion of an animated fetus only.” > C. Whittier, Catholic Teaching on Abortion: Its Origin and Later Development (1981), reprinted in Brief for Americans United for Separation of Church and State as Amicus Curiae 13a, 17a (quoting In octo libros politicorum 7.12, attributed to St. Thomas Aquinas).
If the views of St. Thomas were held as widely today as they were in the Middle Ages, and if a state legislature were to enact a statute prefaced with a “finding” that female life begins 80 days after conception and male life begins 40 days after conception, I have no doubt that this Court would promptly conclude that such an endorsement of a particular religious tenet is violative of the Establishment Clause.
In my opinion the difference between that hypothetical statute and Missouri’s preamble reflects nothing more than a difference in theological doctrine. The preamble to the Missouri statute endorses the theological position that there is the same secular interest in preserving the life of a fetus during the first 40 or 80 days of pregnancy as there is after viability — indeed, after the time when the fetus has become a “person” with legal rights protected by the Constitution.
As a secular matter, there is an obvious difference between the state interest in protecting the freshly fertilized egg and the state interest in protecting a 9-month-gestated, fully sentient fetus on the eve of birth. There can be no interest in protecting the newly fertilized egg from physical pain or mental anguish, because the capacity for such suffering does not yet exist; respecting a developed fetus, however, that interest is valid. In fact, if one prescinds the theological concept of ensoulment — or one accepts St. Thomas Aquinas’ view that ensoulment does not occur for at least 40 days — a State has no greater secular interest in protecting the potential life of an embryo that is still “seed” than in protecting the potential life of a sperm or an unfertilized ovum.
There have been times in history when military and economic interests would have been served by an increase in population. No one argues today, however, that Missouri can assert a societal interest in increasing its population as its secular reason for fostering potential life. Indeed, our national policy, as reflected in legislation the Court upheld last Term, is to prevent the potential life that is produced by “pregnancy and childbirth among unmarried adolescents.” Bowen v. Kendrick,
The State’s suggestion that the “finding” in the preamble to its abortion statute is, in effect, an amendment to its tort, property, and criminal laws is not persuasive. The Court of Appeals concluded that the preamble “is simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations.”
Bolstering my conclusion that the preamble violates the First Amendment is the fact that the intensely divisive character of much of the national debate over the abortion issue reflects the deeply held religious convictions of many participants in the debate.
In my opinion the preamble to the Missouri statute is unconstitutional for two reasons. To the extent that it has substantive impact on the freedom to use contraceptive procedures, it is inconsistent with the central holding in Griswold. To the extent that it merely makes “legislative findings without operative effect,” as the State argues, Brief for Appellants 22, it violates the Establishment Clause of the First
The State prefers to refer to subsections (1) and (2) of §1.205.1 as “prefatory statements with no substantive effect.” Brief for Appellants 9; see id,., at 21; see also
The testing provision states:
“188.029. Physician, determination of viability, duties
“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
See also United States v. Durham Lumber Co.,
We have stated that we will interpret a federal statute to avoid serious constitutional problems if “a reasonable alternative interpretation poses no constitutional question,” Gomez v. United States,
As with the testing provision, the plurality opts for a construction of this statute that conflicts with those of the Court of Appeals,
The fertilized egg remains in the woman’s Fallopian tube for 72 hours, then travels to the uterus’ cavity, where cell division continues for another 72 hours before implantation in the uterine wall. D. Mishell & V. Dava-jan, Infertility, Contraception and Reproductive Endocrinology 109-110 (2d ed. 1986); see also Brief for Association of Reproductive Health Professionals et al. as Amici Citriae 31-32 (ARHP Brief) (citing, inter alia, J. Pritchard, P. MacDonald, & N. Gant, Williams Obstetrics 88-91 (17th ed. 1985)). “[0]nly 50 per cent of fertilized ova ultimately become implanted.” ARHP Brief 32, n. 25 (citing Post Coital Contraception, The Lancet 856 (Apr. 16, 1983)).
An intrauterine device, commonly called an IUD, “works primarily by preventing a fertilized egg from implanting.” Burnhill, Intrauterine Contraception, in Fertility Control 271, 280 (S. Corson, R. Derman, & L. Tyrer eds. 1985). See also 21 CFR § 801.427, p. 32 (1988); ARHP Brief 34-35. Other contraceptive methods that may prevent implantation include “morning-after pills,” high-dose estrogen pills taken after intercourse, particularly in cases of rape, ARHP Brief 33, and the French RU 486, a pill that works “during the indeterminate period between contraception and abortion,” id., at 37. Low-level estrogen “combined” pills — a version of the ordinary, daily ingested birth control pill — also may prevent the fertilized egg from reaching the uterine wall and implanting. Id., at 35-36.
The contrast between Justice Stewart’s careful explication that our abortion precedent flowed naturally from a stream of substantive due process cases and Justice Scalia’s notion that our abortion law was “constructed overnight in Roe v. Wade,” ante, at 537 (concurring in part and concurring in judgment), is remarkable.
Several amici state that the “sanctity of human life from conception and opposition to abortion are, in fact, sincere and deeply held religious beliefs,” Brief for Lutheran Chureh-Missouri Synod et al. as Amici Curiae 20 (on behalf of 49 “church denominations”); see Brief for Holy Orthodox Church as Amicus Curiae 12-14.
The dissent in Stone did not dispute this proposition; rather, it argued that posting the Ten Commandments on schoolroom walls has a secular purpose.
See, e. g., Brief for Catholics for a Free Choice et al. as Amici Curiae 5 (“There is no constant teaching in Catholic theology on the commencement of personhood”).
Pointing to the lack of consensus about life’s onset among experts in medicine, philosophy, and theology, the Court in Roe v. Wade,
No Member of this Court has ever questioned the holding in Roe,
“The Court recognizes that the State may insist that the decision not be made without the benefit of medical advice. But since the most significant consequences of the decision are not medical in character, it would seem to me that the State may, with equal legitimacy, insist that the decision be made only after other appropriate counsel has been had as well. Whatever choice a pregnant young woman makes — to marry, to abort, to bear her child out of wedlock — the consequences of her decision may have a profound impact on her entire future life. A legislative determination that such a choice will be made more wisely in most cases if the advice and moral support of a parent play a part in the decisionmaking process is surely not irrational. Moreover, it is perfectly clear that the parental-consent requirement will necessarily involve a parent in the decisional process.” Planned Parenthood of Central Mo. v. Danforth,
The other examples cited by the State are statutes providing that tin-born children are to be treated as though born within the lifetime of the decedent, see Uniform Probate Code § 2-108 (1969), and statutes imposing criminal sanctions in the nature of manslaughter for the killing of a viable fetus or unborn quick child, see, e. g., Ark. Stat. Ann. §41-2223 (1947). None of the cited statutes included any “finding” on the theological question of when life begins.
No fewer than 67 religious organizations submitted their views as amici curiae on either side of this case. Amici briefs on both sides, moreover, frankly discuss the relation between the abortion controversy and religion. See generally, e. g., Brief for Agudath Israel of America as Ami-cus Curiae, Brief for Americans United for Separation of Church and State et al. as Amici Curiae, Brief for Catholics for a Free Choice et al. as Amici Curiae, Brief for Holy Orthodox Church as Amicus Curiae, Brief for Lutheran Church-Missouri Synod et al. as Amici Curiae, Brief for Missouri Catholic Conference as Amicus Curiae. Cf. Burke, Religion and Politics in the United States, in Movements and Issues in World Religions 243, 254-256 (C. Fu & G. Spiegler eds. 1987).
“Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects — or even intolerance among ‘religions’ — to encompass intolerance of the disbeliever and the uncertain. As Justice Jackson eloquently stated in West Virginia Board of Education v. Barnette,
“ ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’
“The State ... , no less than the Congress of the United States, must respect that basic truth.” Wallace v. Jaffree,