*1 MISSOURI, et WEBSTER, ATTORNEY GENERAL OF HEALTH SERVICES REPRODUCTIVE et al. v. al. Argued April July No. 88-605. 1989 Decided *6 Rehnquist, J., judgment the of the Court and C. announced delivered II-C, opinion respect opinion with Part for a unanimous Court I, II-A, II-B, White, in respect of the Court with to Parts and which O’Connor, Scalia, Kennedy, JJ., joined, opinion and an with and re- III, Kennedy, JJ., joined. spect to Parts II-D and in which White and O’Connor, 3., Scalia, J., post, p. post, p. opinions and filed con- Blackmun, J., concurring judgment. in curring part in and filed an opinion part part, Brennan concurring dissenting and which and Stevens, J., Marshall, JJ., joined, opinion post, p. 537. filed an con- part, p. curring part dissenting post, 560. Attorney pro Webster, L. of Missouri, se, General
William appellants. argued cause for With him on the briefs Jerry Short, L. Boicourt L. were Michael Assistant At- torneys General. argued Fried cause for United States as
Charles urging Acting amicus curiae reversal. On the brief were Bryson, Attorney Solicitor General Assistant Bol- General Roger Clegg, Deputy Merrill, ton, Solicitor General Steven Kellogg. Valentine, R. K. and Michael argued appellees. Frank Susman him cause With Roger K. Evans, Klassel, on the brief were Dara Barbara E. Otten, Blumenthal, Thomas M. Janet Benshoof.* *7 urging Lawyers
*Briefs amici curiae filed reversal were for Alabama Children, Inc., by for III Unborn John J. Coleman and E. Max- Thomas icell; Gynecolo- for the American Association Prolife Obstetricians and by gists Paige Cunningham; et al. Dolores Horan and for Comstock the Association, Family Inc., Coleman; M. by Peggy American for the Ameri- Inc., Baker, League, by can Edwyn Life Marion Harrison and John S. Jr.; by Roger for Catholic the Health Association of the United States J. Harris, Showalter, Edgar, Boozang, M. David Kathleen M. J. Stuart and Campbell; Lawyers Peter E. Catholic Guild for the of the Archdiocese of Boston, Inc., by Zandrow, Jr.; Calum B. Anderson and Leonard F. for by Gerard; for B. the Center Judicial Studies et al. Jules for Covenant Loken; by Gregory Family by House et al. A. for Focus On The et al. Shoivers; Holy H. by George Robert for the Orthodox Church James Jotras; Knights by Cynkar for the Robert J. of Columbus and Brendan V. Jr.; Sullivan, Synod by for Philip the Lutheran Church-Missouri et E. al. Draheim; Harris, by for the Missouri Catholic Conference David M. J. Roger Edgar, Huger, Bernard M. Boozang, C. Kathleen and Louis C. DeFeo, Jr.; by Legal Douglas for the National Foundation W. Davis and Skolrood; Right Advocates, Inc., by Robert K. for to Life Richard W. Olsen; Rory for by Schmude and R. the Rutherford al. Institute et James Whitehead, Strahan, Knicely, Morris, J. John W. Thomas W. David E. Pentiuk, Hollberg, Dougherty, A. Amy William B. Randall William Bon- ner, Bundven; Crain, L. La'try and W. Charles for the Southern Center for Jordan; by Law and Ethics Albert L. for the Southwest Life and Law Cen- ter, Smith; Inc., by David Burnell for the United States Catholic Confer- Harris; by Chopko Phillip ence E. H. for Mark and 127 Members of the Belz, by Wardle, Assembly Timothy Lynn Missouri General D. and Rich- Wilkins; Jr., Joseph Lynch, by Lynch, ard pro G. and for James Mr. se. urging amici were Briefs of curiae affirmance filed for the American Neuborne, by Benshoof, Civil Liberties Union et al. Bunt Janet Rachael Pine, Paltroiv; Lynn Congress N. M. for American and the Jewish et al. Minow; by Library by Martha L. for the American Association al. et Bruce Schneider; Mark D. for American J. Ennis and Medical Association Esty, R. by Bierig, Phillips, Stephan et al. G. Elizabeth H. Jack Caiter judgment announced Rehnquist Chief Justice respect opinion the Court with and delivered Court respect opinion an with II-B, II-C, and I, II-A, to Parts Rockett, Klein; Allen, Lawton, I. for the R. and Joel E. Ann E. Laurie Bersoff; by N. the Ameri- Donald for Psychological Association American Taub; by Hall Nadine al. John H. can Health Association et Public Berzon; by Marsha for Action et al. S. for Americans for Democratic Boothby, Separation by State Lee of Church and Americans United for Repro- Nixon, Lipshutz; the Association of and Robert for Robert W. J. Dorothy by K. Connell and al. Colleen ductive Health Professionals et Annas; Zimbrakos; Privacy George J. for Catho- by B. for Bioethicists for Hennessey; for the Center for by Free Choice et al. Patricia lics for a Asher; for Options by H. Henn and Thomas Population et al. John City of York et al. Rights on Civil of the Bar of the New Committee Leonard, Wilner, Audrey S. Fein- by Lang, Arthur Jonathan Diane S. S. Goodman; Organiza- berg, for Women’s Health and Janice 22 International Kolbert; by al. by Kathryn et tions for American Nurses’ Association Golumbic; Against E. Violence for the Coalition Domestic Calvin National by Strauss; Family Planning Reproductive David A. National Feldesman, Stith, K. Jeffrey and Thomas Health Association James L. Zemaitis; Hospitals Public Alan E. for the National Association of *8 Bernard; Population-Environment Phyllis K. and E. for Balance Parver by Law; Lassow; A. Sylvia Dina R. for American Historians by et al. by E. 2,887 et al. Burns. and Women Who Have Had Abortions Sarah for by al. amici the State of California et Rob- Briefs of curiae were filed for Abrams, Sherwood, York, Peter Attorney New Solicitor ert General of 0. Attorneys General, Lynn Tepper, M. Marla Assistant and Suzanne and Shannon, Massachusetts, General, Attorney and M. General of Su- James Wessel, General, Madelyn Attorneys Durrell F. Assistant zanne E. and Underwood, se, Holtzman, D. K. de John Van pro Barbara Elizabeth California, Woodard, Attorney Attorney Gen- of Duane Kamp, General Mattox, Texas, Colorado, Attorney Jeffrey L. General of and eral Jim of Vermont; by et al. of for the of Louisiana Amestoy, Attorney General State Levert, Louisiana, Guste, Jr., P. Attorney Jo Ann General William J. Corbin, General, Rayer, K. Attorney Thomas A. Robert and Assistant Jones, Idaho, Arizona, Attorney General of and Attorney Jim General Preate, Jr., Attorney Pennsylvania; Agudath for Israel Ernest D. General Prager; Academy Medical Eth- by D. for the American of America Steven Jr.; Organization for National Women by Bopp, ics for California James Sure; Life, Inc., by for et al. Kathryn Collegians for American by et A. al. Destro; by al. League Action et Rights Abortion A. for the Canadian Robert II-D III, Parts and which Justice White and Justice join. Kennedy appeal constitutionality
This
concerns the
of a Missouri
regulating
performance
statute
of abortions. The United
Appeals
Eighth
States Court of
for the
Circuit struck down
provisions
ground
they
several
of the statute on the
vio-
lated this
Court’s decision Roe
U.
Wade, 410
S. 113
(1973),
following
probable jurisdic-
and cases
it. We noted
tion,
Andrew Puzder and Kenneth C. for Feminists For Life of Amer- by Torre; ica Speech by et al. Christine for Smith Free Advocates Thomas Monaghan; Sassone; Patrick by for Human Life International Robert L. Potts; Right by for the International to Life Federation John for J. by National Lawyers Association of Women al. et Nicholas DeB. Katzen- bach, Beane, Leona Estelle H. Rogers; and for the National Council of Women, Inc., Negro by Gopelon; et al. Rhonda for Organiza- the National Katz; by tion for Women L. Right John S. for the National Life Commit- tee, Inc., by Jr.; Bopp, England James for the New Action Christian Council, Inc., Moran; by Philip Right D. for League to Life of South- California, Inc., Sassone; by ern Robert L. 77 Organizations for Committed Lichtman, Equality by L. Women’s Judith Donna R. Marcia Lenhoff Ridder, Creenberger, Stephanie Wendy Williams; and Webster for Certain Congress by Members of the United States Burke Marshall and Redlich; Congressman Christopher Norman for H. Smith et Albert al. Blaustein, Grant, Lohr; P. Edivard R. Leg- Ann-Louise State Kay, Brosnahan, Londen; islators Henna Hill James J. W. Jack Assembly for Certain Members of the General of the Commonwealth of Pennsylvania by Ball, Murren, Bentley Philip William J. Maura K. *9 Quinlan; for American Legislators by Benjamin Certain State Paul Forsythe; Group Linton and Clarke D. for A of American Law Professors Redlich; by Physicians Nonnan Distinguished by for 167 Scientists and Wright; Sassone; Jay Kelly by Larry Joyce for Allen L. Edward Robert for by Joyce; Sassone; P. L. by Thomas for Paul Marx Robert for Bernard N. by Sassone; Vaughn Mr. and Nathanson for Austin et al. Mr. Sassone. 500
HH signed into law 1986, the Governor of Missouri In June Bill for House Committee Substitute Missouri Senate (hereinafter statute), ex- which amended 1596 Act or No. concerning isting and abortions.1 unborn children state law Wade, then-existing reg abortion 1 After the State of Missouri’s Roe v. 542.380, (1969), ulations, §§559.100, 563.300 were and see Mo. Rev. Stat. This by three-judge court. Court sum a federal declared unconstitutional Rodgers, marily judgment. affirmed that Danforth Roe, statutes, a like statute at issue made it the Texas Those except the life was at stake. perform an abortion when mother’s crime to S., 117-118, n. and 2. 410 U. at 1974, House In enacted House Committee Substitute for June the State 1211, imposed regulations during abortions all Bill No. new on which things, Act defined “viabil- stages Among of other the 1974 pregnancy. 2(2); prior § the to an ity,” the consent of woman abortion required written 3(2); § pregnancy, required of the written consent during the 12 weeks first during prior the first spouse the to an elective abortion of woman’s 3(3); parent § of one if pregnancy, required of the written consent weeks prior dur- 18 and unmarried to an elective abortion the woman was under 3(4); required physician performing § pregnancy, ing the first 12 weeks of “preserve life and professional care to the health of an abortion to exercise and, pregnancy if he should fail that stage of regardless the fetus” damages, manslaughter him liable duty, guilty him made deemed abortion, 6(1); amniocentesis, a method of prohibited § use of saline the 9;§ required certain record- pregnancy, 12 weeks after first abortions, §§ physicians performing 11. keeping for facilities and health Danforth, Mo. v. 428 U. S. In Central Planned Parenthood of id., 63-65, viability, provi- the consent upheld the definition of at the Court Id., id., 65-67, at §3(2), recordkeeping requirements. at and the sion id., 67-72, pa- provision, at spousal It down consent 79-81. struck id., 72-75, prohibition abortions am- provision, at on rental consent id., 75-79, physicians niocentesis, requirement exercise and the stage preserve regardless life of the professional care to fetus Id., pregnancy. at 81-84. alia, that, required passed abortions legislation In inter Missouri § hospital, Rev. Stat. 188.025 performed be in a Mo. after weeks to performed, 1979); report for required pathology each abortion (Supp. 188.047; during presence physician a second abortions required § 188.030.3; viability, required paren- minors to secure performed after *10 provisions, 5 of which are now before of 20 The Act consisted preamble, provision, or “find- contains first the Court. “[t]he legislature ings” by life of each human the state conception,” being begins have and that “unborn children at well-being.” protectable Mo. life, health, interests (2) (1986). requires 1.205.1(1), §§ The Act further Rev. Stat. interpreted provide unborn chil- be to that all Missouri laws subject rights enjoyed by persons, other dren with the same precedents. and this Court’s to the Federal Constitution requires §1.205.2. Among provisions, the Act its other any performing prior whom a an abortion on woman to that, pregnant, physician to believe is 20 or more weeks has reason by per- physician viable whether the fetus is the ascertain forming tests as are neces- medical examinations and “such weight, finding gestational age, sary the to make ” § maturity lung Act 188.029. The also of the unborn child. perform public employees prohibits and facilities the use of necessary life, the mother’s not to save or assist abortions public employees, prohibits or fa- funds, the use of and it counseling” “encouraging purpose cilities for the necessary to save her life. an abortion not woman to have §§ 188.215. 188.210, 188.205, professionals employed July health the
In five corporations brought nonprofit action this class two State and District District Court for the Western States the United constitutionality challenge of the Missouri Missouri sought appellees declara- Court, in this Plaintiffs, statute. statutory ground tory injunctive on the that certain relief provisions Fourteenth Ninth, and First, Fourth, violated They App. A9. to the Federal Constitution. Amendments including “privacy rights, of various violations asserted abortion, § 188.028. juvenile court for an from tal consent or consent Mo., Ashcroft, City, Inc. v. Assn. Kansas In Planned Parenthood hospital down the second-trimester struck U. S. 476 Court 481-482, id., provisions de upheld but the other requirement, at ization Id., 494. scribed above. seeking
rights pregnant abortions”; women the “woman’s “righ[t] privacy physician- abortion”; to an *11 patient relationship”; “righ[t] practice physician’s the “right pregnant the to life due to in- medicine”; woman’s herent risks the childbirth”; involved and woman’s adequate “receive . . . treatment” medical advice and con- cerning Id., abortions. at A17-A19.
Plaintiffs filed this suit their behalf and on behalf “on own consisting of the entire class facilities and Missouri licensed physicians professionals offering or other health care abor- pregnancy counseling tion services or and on behalf of the pregnant seeking class of services entire females abortion counseling pregnancy Id., of Missouri.” within the State Reproductive nonprofit corporations at A13. The two are family planning gyneco- Services, Health which offers logical public, including up services to the abortion services “gestational age,”2 to weeks Planned Parenthood City, provides up Kansas which to 14 abortion services weeks gestational age. plaintiffs Id., at individual A9-A10. The physicians, are three one worker. All are nurse, and social “public employees” “public they at in Missouri, and facilities” paid “public are for their as those funds,” services with terms §188.200. plaintiffs, are defined The within individual scope public encourage employment, of their and counsel pregnant nontherapeutic women to have abortions. Two of physicians perform App. A54-A55. abortions. complaint
Several after filed, weeks was District temporarily provi- Court restrained enforcement of several Following 3-day sions the Act. trial December provisions the District Court declared of the Act seven un- enjoined Supp. 662 F. constitutional their enforcement. (WD 1987). provisions pream- Mo. These included the § provision, ble, which 1.205; “informed consent” re- “gestational age” “length pregnancy The Act defines as the meas day period.” ured from the first of the woman’s last menstrual Mo. Rev. 188.015(4) (1986). § Stat. quired physicians pregnant inform woman of certain § performing require- facts before an abortion, 188.039;the post-16-week performed only ment that abortions be in hos- § pitals, viability, 188.025; mandated tests to determine prohibition public 188.029;and the on the funds, use of em- ployees, perform nontherapeutic and facilities to or assist public abortions, and the restrictions on the funds, use of em- ployees, encourage and facilities to or counsel women to have such abortions, §§188.205, 188.210, 188.215. at 430. Id., Appeals Eighth
The Court of
for the
affirmed,
Circuit
with
exception
appeal.
one
(1988).
not relevant to this
II requires Decision of this case us to address four sections of (a) (b) preamble; prohibition the Missouri Act: on the (c) public employees perform use of facilities or abortions; prohibition public funding counseling; on of abortion (d) requirement physicians viability that conduct tests prior performing abortions. We address these seriatim.
A preamble, “findings” by The Act’s as noted, sets forth Legislature “[t]he being Missouri gins life of each human be- “[ujnborn conception,” at pro- and that children have well-being.” tectable in life, interests health, and Mo. Rev. (2) (1986). §§1.205.1(1), Stat. The Act then mandates that interpreted provide state laws be unborn children with “all rights, privileges, per- and immunities available to other subject sons, citizens, and residents of this state,” to the precedents. Constitution and this Court’s In 1.205.2.4 in- appeal The State did not the District Court’s invalidation of the Act’s provision 2d, “informed consent” Appeals, to the Court of 851 F. *13 2,n. it and is not before us. provides Section 1.205 in full: general assembly “1. The of this state finds that: “(1) The life of each being begins human at conception; “(2) protectable life, health, Unborn children have interests in and well- being; “(3) parents The natural protectable of unborn children have in interests life, health, well-being
the and of their unborn child. January 1, 1988, “2. Effective the laws of this state shall be interpreted acknowledge and construed to on behalf every of the unborn stage child at development, rights, privileges, of all the and immunities available to other citizens, persons, state, and residents of subject only this to the Constitu- States, tion of the United and decisional interpretations thereof validating preamble, Appeals the Court of relied on this may adopt theory dictum “‘a Court’s that State not one of ” begins justify regulation when life to its of abortions.’ quoting F. 2d, at 1075-1076, Akron v. Akron Center Re- for productive Health, Inc., 462 in turn citing rejected Roe v. Wade, 410 U. atS., 159-162. It Mis- preamble souri’s claim that the was “abortion-neutral,” and “merely determine[d] begins when life a nonabortion con- prerogative.” text, a traditional state 2d, F. at 1076. thought “[t]he only plausible The court that inference” from “every remaining that reg- the fact section of the bill one save performance ulates the of abortions” was that in- “the state regulations against tended its abortion to be understood backdrop theory of its of life.” Ibid.5 preamble precatory
The State that contends itself is imposes and no substantive on abortions, restrictions appellees standing challenge do not therefore have it. Appellants Appellees, Brief for 21-24. on the hand, other preamble operative part insist that the is an of the Act in- guide interpretation provisions tended to other of Appellees They Act. Brief for 19-23. maintain, exam- ple, preamble’s may prevent physi- that the definition life of Supreme United specific States provisions contrary Court to the in the statutes and constitution of this state. section,
“3. As used this the term ‘unborn children’ or ‘unborn child’ shall include all unborn child [sic] or offspring children of human beings conception from the moment every until stage biologi- birth development. cal Nothing
“4. interpreted this section shall be creating a cause of against indirectly action harming woman for her failing unborn child properly by failing any care for particular program herself or to follow prenatal care.” 5Judge part Arnold from dissented this the Court Appeals’ deci sion, arguing that begins Missouri’s declaration of when life should be upheld subjects “insofar as it abortion,” relates other than such as “cre ating against persons causes of action other than the wrongful mother” for extending death or protection of the criminal law to 851 F. fetuses. 2d, (opinion concurring part at 1085 dissenting part). *14 dispensing hospitals of con- certain forms public from dans at 22. Id., traceptives, device. as the intrauterine such Appeals the mean- misconceived of the Court view, In our only could that a State ing dictum, which was Akron regulation under invalid “justify” otherwise an abortion not view ground the State’s it embodied that on the Roe v. Wade by preamble Certainly begins. does not life about when appellees’ any aspect regulate other or abortion its terms emphasized Roe v. practice. that has The Court medical authority to “implies of a State no limitation on Wade favoring judgment over abortion.” childbirth make a value preamble read can be S., at 474. Roe, U. Maher judgment. express simply that sort of value language preamble’s which the think the extent to We regulations interpret might or state statutes other be used definitively only something can of Missouri the courts protections children to unborn has offered law decide. State supra, probate 161-162, Wade, Roe v. law, see tort and interpreted that. no more than to do can be and 1.205.2 that the situation is much the same have, then, we What Labor v. Federation Alabama State confronted Court McAdory, As in that case: 325 U. S. upon pass constitutional thus invited to are ‘We yet applied validity not been which has of a state statute peti- by applied courts to the state to be threatened Lacking anticipated. in the manner others tioners or any of the statute the state construction authoritative question arises, which no constitutional without courts, controlling authority give lacking con- such a presents no a record which ourselves, and with struction applied, the statute is to be facts to which set of concrete disposed plainly not one to be case is declaratory judgment procedure.” Id., at 460. enough address the mean- courts to for federal time It will be applied the ac- preamble to restrict ing it be should way. this appellees then, concrete Until some tivities
507 empowered propositions, Court “is not to decide . . . abstract government principles declare, or for the cases, to of future thing or which rules of law cannot affect the result as to the Tyler Judges Reg- issue in case before it.” v. Court of (1900). Valley Forge istration, 179 U. S. 409 See also College Separation Christian v. Americans United for (1982).6 State, Inc., Church & 454 S. 464, U. We there- pass constitutionality fore need not on the of the Act’s preamble.
B provides “[i]t any Section 188.210 shall be unlawful for public scope employee employment per- within his to necessary form an or assist not abortion, to save the life of § any pub- while mother,” 188.215makes it “unlawful facility purpose performing lic be used for the or assisting necessary an abortion not to save life Appeals provisions The mother.”7 Court of held that these this contravened Court’s abortion decisions. 851 F. 2d, at contrary 1082-1083. We take the view. DeShaney Winnebago
As we said earlier this Term (1989): County Dept. Services, Social “[O]ur recognized have cases that the Due Process Clauses generally governmental confer no affirmative aid, may necessary liberty, even aid where such be life, secure property government may or interests of which the itself not deprive supra, individual.” In Maher v. Roe, Court upheld regulation a Connecticut welfare under which Med recipients payments icaid received for medical services re- 6Appellees claim legislature’s preamble also that the violates the Mis souri Appellees Constitution. Brief for 23-26. But the considerations equally inappropriate discussed in the text make it for a federal court to pass upon claim before the interpreted this state courts have the statute. “public employee” defines “any person employed statute to mean any agency this political state or or subdivision thereof.” Mo. Rev. 188.200(1) § facility” “any public Stat. “Public is defined as institu tion, facility, public public any owned, equipment, physical leased, or asset or any agency political controlled this state or subdivisions thereof.” 188.200(2). nontherapeutic childbirth, lated to but not for abortions. rejected unequal The Court the claim that this subsidization impermissible of childbirth and abortion was under Roe v. put As the Court it: Wade. regulation
“The Connecticut before us is different in previous kind from laws invalidated in our abortion regulation places decisions. The Connecticut no obsta- pregnant cles—absolute or otherwise—in the woman’s *16 path indigent to an abortion. An woman who desires an disadvantage consequence abortion suffers no as a of Connecticut’s decision to fund she childbirth; continues dependent private as before to be on sources for the may service she desires. The State have made child- thereby influencing birth a more attractive alternative, imposed decision, woman’s but it no has restriction already on access to abortions that was not there. The indigency may that make in it difficult—and some cases, perhaps, impossible some women to have abortions —for any way created in is neither nor affected the Con- regulation.” necticut S.,U. at 474.
Relying on in Maher, Doe, Court Poelker v. 432 (1977), city held that of St. Louis committed “no electing, policy in constitutional violation ... a as choice, provide publicly hospital financed services childbirth providing corresponding nontherapeutic without services for abortions.” recently, in
More
Harris v. McRae,
sary abortions” was rationally related to the legitimate gov-
ernmental
childbirth.
448 U.
325.
goal
encouraging
S., Court
Appeals
these cases on the
distinguished
ground that
a
prevent
“[t]o
access to
more
public facility does
than
a
demonstrate
choice
political
childbirth;
favor
it
clearly narrows and
some cases forecloses the availability
of abortion to women.”
We think that this analysis is much like that which we rejected Maher, Poelker, McRae. As cases, those State’s decision here use facilities and staff to public childbirth over abortion no encourage “places governmental obstacle in woman path of a who her chooses to terminate pregnancy.” McRae, 448 U. at 315. S., Just Congress’ *17 in refusal to fund abortions McRae left “an indigent woman
with at the range least same of in choice whether to deciding obtain a medically necessary abortion as she would have had if had chosen to Congress subsidize no health care costs at all,” id., at Missouri’s refusal to allow public employees to perform public abortions hospitals leaves pregnant the woman with same choices as if the had State chosen not any to operate public hospitals at all. The challenged provi- sions restrict a woman’s an only ability to obtain abortion to the extent she that chooses to use a physician affiliated with a public This circumstance is more hospital. easily remedied, and thus less burdensome, than considerably indigency, which make it “may cases, difficult —and some perhaps, impossible some women to have abortions” pub- without —for Maher, lic S., 432 U. at 474. funding. Having held that the not violate Roe State’s refusal to fund does abortions Wade, it strains to reach a logic contrary result for the use may employees. public If State “make of facilities and judgment favoring . abortion and . . over childbirth value by public judgment implement funds,” of that the allocation surely may through supra, it do so alloca- at Maher, hospitals public as medical resources, such tion of other staff. distinguish Appeals sought our cases on of
The Court ground “[t]he that evidence here showed additional facility’s providing public services costs in abortion all of the pays.” recouped patient 2d, at 1083. when the F. are thought expenditure any public the court funds, Absent “expressing” preference “its for was more than that Missouri creating an “ob- over but rather was abortions,” childbirth [that right an to exercise of to choose abortion stacle compelling not] Ibid. interest.” stand absent a state could disagree. We greatest,” in Maher, are we concerns said
“Constitutional impose attempts supra, its will 476, “when the State encourage power actions law; the State’s the force necessarily public far broader.” interest is deemed to be requires Nothing enter or remain States to in the Constitution appellees performing Nor, abortions. the business patients private physicians suggest, have some and their do public facilities for access to kind constitutional Appellees performance 46-47. Brief of abortions. performing recoup costs if State all of its Indeed, does subsidy, indirect, is avail- or and no state direct abortions, procreational any choice is bur- it difficult to see how able, employ- of its facilities the State’s ban on the use dened performing ees for abortions.8 had particular State socialized analysis might apply if a A different *18 This publicly funded. hospitals physicians were and all its
medicine
performed
who
barred doctors
might also be different
if
State
case
any
public facilities for
private
from the use of
facilities
abortions
McRae,
317,
n.
Harris purpose.
See
Maher, Poelker, and McRae all support
the view that the
State need not commit any resources to facilitating abortions,
if
even
it can turn a profit by
so.
In
Poelker,
doing
suit
was filed
an
indigent who could not afford to pay for an
abortion, but the ban on the performance of nontherapeutic
abortions
city-owned hospitals applied whether or not the
woman
pregnant
could pay.
C The Missouri Act contains three provisions to “en- relating or couraging a woman counseling to have an abortion not nec- essary to save her life.” Section 188.205 states that no pub- lic funds can be used for this § purpose; 188.210 states that public employees cannot, within the scope their employ- ment, §188.215 such engage speech; and forbids such speech public facilities. The Court of Appeals did not con- sider 188.205 §§ from separately 188.210 and 188.215. It held that all three of these were provisions unconstitutionally vague, that “the ban on using public funds, employees, and facilities to encourage counsel a woman to have an abortion is an unacceptable infringement the woman’s four- teenth amendment to choose an abortion after receiving brought by plaintiff
9 The suit in Poelker was “on her own behalf and on behalf pregnant of the entire class of City women residents of the Louis, Missouri, St. desiring personnel, to utilize the facilities and services general public hospitals City within the of St. Louis for the termina Poelker, (CA8 1974). pregnancies.” tion of Doe v. 497 F. 2d *19 necessary to exercise the know- the medical information intelligently.” ingly 2d, at 1079.10 851 F. appeal Appeals’ only the Court of
Missouri has chosen § funding provision, public 188.205. See invalidation of the this, question A Juris. Statement i-ii. threshold whether provision simply primary whether it is an conduct, reaches or fiscal officers not to allocate funds instruction to the State’s accept, counseling. purposes for for of decision, abortion We § at the the State’s claim that 188.205“is not directed conduct any physician provider, private public,” or health care solely persons responsible but “is directed at those for ex- pending public Appellants funds.” Brief for 43.11
Appellees they “adversely” contend that are not affected § interpretation under the 188.205, State’s and therefore longer controversy that there is no a case or us on this before question. Appellees Brief for 31-32. Plaintiffs are masters complaints appellate stage of their and remain so at the of a litigation. Caterpillar Williams, Inc. v. 386, See 482 U. S. (1987). majority agrees appel- 398-399 A of the Court with § controversy moot, lees that the over 188.205is now because appellees’ argument longer amounts to a decision to no seek a § declaratory judgment that 188.205 is unconstitutional
accompanying Monaghan, declarative relief. See Deakins v. (1988); Munsingwear, 484U. 193, 199-201 S. United States accordingly Inc., 340 U. S. 39-40 We direct the Appeals judgment Court of to vacate the of the District Court separate opinion, Judge prohibition In argued a Arnold that Missouri’s “sharply violated the First Amendment because it between diseriminate[s] speech viewpoint: physician, example, kinds of on the basis of their abortion, discourage against it, public facility, could an or counsel while 2d, he encourage but or she could not or counsel favor of it.” 851 F. at 1085. issue, Appeals
11 Whilethe Court of did not address this the District thought “public Court the definition of funds” in Mo. Rev. Stat. (1986) “certainly enough ‘encouraging 188.200 is broad to make or coun anyone seling’ paid public unlawful for who is from” funds as defined (WD 1987). Supp. § 188.200. 662 F. Mo. part with instructions to dismiss the relevant of the com- plaint. [dispute] Deakins, S., 484 U. 200. “Because this part [appellees’]willingness perma- was rendered inmoot *20 nently equitable to withdraw their claims from their federal prejudice action, a dismissal with is indicated.” Ibid.
D provides: Section 188.029of the Missouri Act physician performs “Before an abortion aon woman he carrying has reason to believe is an unborn child of twenty gestational age, physician or more weeks by using shall if the first determine unborn child is viable exercising degree proficiency and care, that and skill, commonly ordinarily exercised skillful, careful, prudent physician engaged practice and in similar under making the same or similar conditions. In this deter- viability, physician perform mination of shall performed cause to be such medical examinations and necessary finding gesta- tests as are to make a age, maturity weight, lung tional and of the unborn child findings and shall enter such and determination of viabil- ity in the medical record of the mother.”12 preamble, parties disagree meaning As with over the statutory provision. emphasizes of this The State the lan- guage speaks phy- sentence, of the first which in terms of the viability being sician’s determination of made the stand- ordinary profession. ards skill the medical Brief for Appellants Appellees language 32-35. stress the of the sec- prescribes necessary” ond sentence, which such “tests as are finding gestational age, weight, lung to make a fetal maturity. Appellees Brief for 26-30. penalty provision provides “[a]ny
12 The person contrary Act’s who provisions to the knowingly performs of sections 188.010 to 188.085 . . . any knowingly perform any required by abortion or fails to action [these] guilty sections . . . be A shall class misdemeanor.” Mo. Rev. Stat. § 188.075 § Appeals requiring Court read 188.029as that after perform gestational age, 20 weeks must “doctors tests to find weight lung maturity.” fetal 851 F. 2d, n. 5. The court indicated that the tests needed to determine fetal weight 20at weeks are “unreliable and inaccurate” and would add to the cost of an abortion. Ibid. $125 $250 It also only stated that “amniocentesis, the method available to de- lung maturity, contrary accepted prac- termine medical gestation, expensive, imposes tice until 28-30 weeks of significant pregnant health risks for both the woman and the fetus.” Ibid. meaning
We must first determine the of 188.029 under practice Missouri law. Our usual is to defer to the lower court’s construction statute, of a state but we believe the Appeals plain Court of has “fallen into error” in this case. Frisby (1988); v. Schultz, 487 *21 474, U. S. 483 see Brockett Spokane (1985). Arcades, Inc., 491, 472 U. S. n. 500, 9 “ expounding guided Tn by single a statute, we must not be a provisions sentence or member of a sentence, but look to the ” object policy.’ law, whole and to its Philbrook v. Glodgett, (1975), quoting 421 707, United States v. (1849). Heirs Boisdoré, 8 113, How. See Chemehuevi of (1975); Tribe FPC, Indians v. 420 U. S. 395, 402-403 Kokoszka v. Belford, 417 U. S. The Court Appeals’ interpretation also runs “afoul of the well- principle interpreted established that statutes will be to Frisby, supra, avoid constitutional difficulties.” at 483. viability-testing provision only We think the makes if sense require only the second sentence is to read those tests that making subsidiary findings viability. are useful to as to If provision require physician perform we construe this to to specified findings those tests needed to make the three in all including physician’s circumstances, when the reasonable professional judgment indicates that the tests would be ir- determining viability dangerous relevant to or even to the § mother fetus, and the the second sentence of 188.029would requirement physician conflictwith the first sentence’s that a apply professional judgment. his reasonable skill and It incongruous provision, especially would also be to read this “necessary,”13 require performance the word of tests expressed statutory purpose determining irrelevant viability. Ap- It thus seems clear to us that the Court of peals’ well-accepted construction of 188.029violates canons statutory interpretation used courts, Missouri see Stilley, State ex rel. Brothers Stern & Co. v. 337 S. W. 2d (Mo. 1960)(“The 934, 939 basic rule of statutory construction legislative is to first seek the intention, and to effectuate if it possible, and the law favors constructions which harmonize unjust, with reason, which tend to avoid absurd, unrea- confiscatory oppression”); sonable or results, Bell v. Mid- (Mo. 1988) Century App. Ins. Co., 750 S. W. 2d (“Interpreting phrase literally produce would an absurd Legislature strongly presumed result, which the not to intended”), ignores. have which Post, Justice Blackmun at 545-546. viability-testing provision of the Missouri Act is promoting potential
concerned with the State’s interest human life rather than in maternal health. Section 188.029 essentially presumption viability creates what is at 20 physician indicating weeks, which the must rebut with tests prior performing that the fetus is not viable an abortion. physician’s viability by It also directs the determination as to specifying gestational if consideration, feasible, of age, fetal weight, lung capacity. The District Court found that *22 “the medical evidence is uncontradicted that a 20-week fetus gestation viable,” is not that 24 “2314to weeks is the earli- point pregnancy possibility est in where a reasonable of via- 13 (5th 1979) Dictionary (“Necessary. See Black’s Law 928 ed. This word in used, must be considered the connection in which it is as it is a susceptible word meanings. may import physical of various It absolute necessity inevitability, may import only convenient, or it that which is useful, suitable, appropriate, proper, sought”). or conducive to the end 516
bility Supp., 662 exists.” F. at 420. But it also found that may estimating gestational age, there be a in 4-week error supports testing 421, which id., at at 20 weeks. recognized
In v. Wade, Roe the Court that the State has “important legitimate” protecting in interests maternal potentiality in health and S., of human life. 410 U. at During “may, 162. the second the State if it trimester, regulate procedure ways chooses, the abortion that are reasonably Id., related to maternal health.” at 164. After viability, potential when the State’s interest in human life compelling, “may, was held to become the State if chooses, it regulate, proscribe, except and even abortion where it is nec- essary, appropriate judgment, preserva- medical for the tion of the life or of health the mother.” at Id., 165.14 (1979), upon
In Franklin, v. Colautti 439 379 which rely, appellees Pennsylvania held Court that a statute regulating by physician per- of standard care to be used forming possibly an abortion of viable fetus was void for vagueness. reaching Id., at in the 390-401. But course of conclusion, that the Court reaffirmed its earlier statement Planned Parenthood Central Mo. v. Danforth, 428 U. S. of (1976), particu- 64 52, of “‘the determination whether a 14 subsequent understanding. Court’s have this cases reflected See Franklin, added) (1979) (“For Colautti v. (emphasis 439 S.U. logical reasons, biological both we [Roe] indicated that the State’s potential interest in the compelling point life the fetus reaches the at prior Hence, viability, may the State stage viability. not seek to directly restricting this interest a woman’s whether or decision further pregnancy”)-, id., not to terminate her (“Viability point. at 389 is the critical recognized attempt point viability And we have no to stretch one way other”); accord, Planned Parenthood Central v. Dan or the Mo. (State forth, S., regulation designed protect potential at 61 U. period “subsequent viability”); human life limited to Akron Akron v. Health, Inc., Reproductive Center quoting S. U. Wade, added) (State’s Roe S., (emphasis pro U. at 163 interest compelling only tecting potential viability, human life “becomes point capability meaningful at which the fetus ‘has life outside the womb’”). mother’s
517
judgment
lar fetus
is,
is viable
and must
abe, matter for the
responsible attending physician.’”
of the
S.,
439 U.
at 396.
post,
ignores
at
6, n.
the statement
Justice
Blackmun,
legislature
may
in Colautti that “neither the
nor the courts
proclaim
entering
one of the elements
into the ascertain-
viability
gestation
weight
ment of
it weeks of
or fetal
—be
any
single
other
factor—as the determinant of when the
compelling
State has a
interest in the life or health of the
fetus.” 439
S.,U.
at 388-389. To the extent that 188.029
regulates
determining viability,
the method for
it undoubt-
edly
superimpose
regulation
does
state
on the medical deter-
particular
mination whether a
fetus is viable. The
Court
Appeals
thought
and the District Court
it unconstitutional for
Supp.,
this reason.
We think that the doubt cast the Missouri statute these cases is not so much a flaw in the statute as it is a rigid analysis reflection of the fact that the trimester pregnancy course of a enunciated in Roe has resulted in sub- sequent making cases like Colautti and Akron constitutional specify- law in this area virtual Procrustean bed. Statutes ing provided pa- elements of informed consent to be abortion example, they thought tients, for were if invalidated were dialogue “structur[e] . . . the between the woman and her physician.” Thornburgh College v. American Obstetri- Gynecologists, cians and As the Thornburgh pointed dissenters out, such a statute would any judi- have been sustained under traditional standard of dissenting), any cial review, id., at 802 (White, J., or for (Bur- surgical procedure except other abortion. at Id., ger, dissenting). J.,C. *24 legal system, decisis is a
Stare
cornerstone of our
but it has
power in
where, save for
cases,
less
constitutional
constitu-
only body
tional amendments, this Court is the
able to make
changes.
Scott,
needed
See
v.
437 U.
82,
United States
S.
101
We have not refrained from reconsideration of a
prior
proved
construction of
that has
the Constitution
“un-
principle
practice.”
in
sound
in
and unworkable
Garcia v.
Metropolitan
Authority,
San Antonio
469
528,
Transit
U. S.
(1985);
States,
546
see Solorio v.
In the first Roe framework is con general sistent with the notion cast in of a Constitution usually speaking general principles, terms, as ours in is, and key as ours does. The Roe elements of the framework —tri viability mesters and in the not found text of the Con —are any place expect stitution inor else one would to find a con principle. inquiry stitutional essentially Since the bounds of the are legal
indeterminate, the result has been a web of increasingly resembling rules that have intricate, become regulations body code of rather than a of constitutional doct put rine.15 As Justice it, has trimester frame- White 15 example, may For require the Court has held that a State that certain given physician assistant, information be to a woman or his Akron v. Health, Inc., Reproductive S., Akron Center 462 U. at but that it may require not only by phy that such information be furnished to her Id., Likewise, may require sician himself. at 449. a State that abortions clinics, performed Virginia, in the second Simopoulos trimester be in (1983), may 506 require per but it not that such abortions be only hospitals. Akron, supra, formed at 437-439. We not think do any import in these distinctions are of constitutional view of our abandon Blackmun’s claim, post, Justice ment of the trimester framework. Roe, 539-541, far, goes n. that the even under Maher v. State too Doe, (1977); (1977); U. S. 464 Poelker v. S. 519 and Harris v. U. McRae, (1980), by refusing permit public 448 U. the use of facili S. ties, performance as defined Mo. Rev. Stat. 188.200 for the example of abortions is another of the fine distinctions endemic in the Roe framework. country’s
work has left this Court to serve as the “ex officio powers approve disapprove medical board with medical operative practices throughout and standards the United States.” Planned Parenthood Central Mo. v. Danforth, (opinion concurring part dissenting S., 428 U. at 99 part). supra, Garcia, Cf. at 547. place, why
In the second we do not see the State’s interest protecting potential human life should come into existence only point viability, at the and that there should therefore rigid allowing regulation viability be a line state after but *25 prohibiting viability. it before The dissenters in Thorn- burgh, writing analysis, in the context the Roe trimester recognized by positing against would have this fact “fun- right” recognized “compelling damental in Roe the in- State’s protecting potential throughout preg- terest” in human life nancy. “[T]he compelling viability, if interest, State’s after equally compelling viability.” Thornburgh, before dissenting); S., J., U. at 795 id., see at 828 (O’Con- (White, (“State dissenting) compelling nor, J., has in interests ensur- ing protecting potential health and in maternal human life, (citation ‘throughout pregnancy’”) and these interests exist omitted). § requires physician perform tests that 188.029
The to designed viability. to are determine The State here has viability point poten- as the chosen at which its in interest safeguarded. tial human life must be See Mo. Rev. Stat. (1986) (“No §188.030 abortion of a viable unborn child shall performed necessary preserve be unless to the life or health woman”). question It is true that in the tests increase expense regulate abortion, the discretion of the physician determining viability of the fetus. Since undoubtedly many the tests will show cases that the fetus performed is not what viable, tests will have been for in fact were second-trimester abortions. But we are satis- requirement permissibly fied that the of these tests furthers protecting potential life, the State’s interest human and we therefore believe 188.029to constitutional. be join takes us to task for our failure to Justice Blackmun “great in a issues” debate in- as to whether the Constitution privacy general recog- cludes an “unenumerated” to nized cases such as Griswold v. 381 U. Connecticut, S. Connecticut, and Roe. But unlike Roe, Griswold purport adopt complete did not to a whole framework, with govern distinctions, detailed rules and the cases in which liberty apply. such, the asserted interest would As it was opinion, holding, far different from the if not the of Roe v. sought Wade, which to establish a constitutional framework judging regulation during state of abortion the entire pregnancy. sought term of That framework to deal with practice traditionally subject regula- areas of medical to state sought and it tion, balance once and for all reference only protect to the calendar the claims of the State against fetus as a form of human life the claims of a woman to decide for herself whether or not to abort a fetus she was car- rying. experience applying of the Court Roe v. Wade supra, suggests in later n. cases, see to us that unnecessarily attempting there is in not wisdom to elaborate *26 right” the abstract differences between a “fundamental as the abortion, Akron, Court described it 462 U. S. at right,” n. 420, 1, “limited fundamental constitutional which today having treats Roe as established, Blackmun Justice post, liberty protected by 555, at or a interest the Due Proc- testing Clause, ess which we believe it to be. The Missouri requirement reasonably designed here is to ensure that abor- performed tions are not where the fetus is viable—an end legitimate which all concede is that sufficient to is sus- —and constitutionality. tain its us, alia, also accuses inter of coward-
Justice Blackmun illegitimacy dealing politically ice and with “the most divi- ” legal Post, sive domestic issue of our time. at 559. There is no doubt that our will allow holding today some governmental regulation of abortion that would have been prohibited under Franklin, Colautti of cases such as language 439 U. S. Reproductive 379 (1979), and Akron v. Akron Center for supra. Inc., Health, But the goal constitutional adjudica tion is not to surely remove inexorably divisive” “politically issues from the ambit of legislative process, whereby their people through elected representatives deal with mat ters of concern to them. The goal constitutional adjudica tion is to hold true the balance between that which the Con stitution the reach of the puts beyond democratic process and that which it does not. We think we have done that today. post, at suggestion, 557-558, Justice Blackmun’s legislative bodies, in a Nation where more than half of our population women, will treat our decision as an invi today tation to enact abortion regulation reminiscent of the Dark not Ages only misreads our views but does scant justice those who serve such bodies and the who elect them. people
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, those at issue Roe. differ from Here, Missouri has deter- mined that is the at which viability point its interest poten- Roe, on the other tial human life must be In safeguarded. of all hand, the Texas statute criminalized the performance abortions, when the mother’s life was at stake. except at S.,U. 117-118. This case therefore affords us no occasion Roe, to revisit which was that the Texas holding stat- ute unconstitutionally to an infringed abortion de- Clause, id., rived from the Due Process and we leave *27 it undisturbed. To the extent indicated in our we opinion, would modify and narrow Roe and cases. succeeding challenged provisions of none of the the Missouri Because properly Constitution, before us conflict with Act Appeals judgment of the Court
Reversed. in O’Connor, part concurring concurring Justice the judgment. II-B,
I and II-C of the Court’s Í, II-A, concur Parts opinion.
I
opinions
Nothing
in-
us or the
below
the record before
1(2)
1(1)
preamble
that subsections
dicates
regulation
Missouri’s abortion
statute will affect a woman’s
following
to have an
decision
appellees,
abortion.
Stevens,
Justice
pre-
Appellees
suggests that the
see Brief for
may
contraceptive
post,
“interfer[e]
choices,”
amble
also
with
contraceptive
certain
act on a female
because
devices
by
sperm. The
ovum after it has been fertilized
a male
Mis-
“conception”
souri Act defines
as “the fertilization of the
sperm
male,”
ovum of a female
of a
Mo. Rev. Stat.
188.015(3)
§
(1986),
“pro-
children” with
and invests “unborn
§1.205.1(2),
well-being,”
life, health,
tectable interests
conception
from “the moment of
. . . .”
1.205.3. Jus-
any possible
asserts that
interference with
tice Stevens
contraceptive
postfertilization
a woman’s
to use such
devices would be unconstitutional under Griswold v. Con
subsequent
necticut,
Similarly,
directly
pre-
it seems to me to follow
from our
concerning
funding
vious decisions
state or federal
of abor-
(1980),
tions,
McRae,
Harris v.
Roe,
II In its interpretation Missouri’s “determination of via- ante, bility” provision, Mo. Rev. §188.029 Stat. see at 513-521, has plurality proceeded a manner unnec- essary to deciding question at hand. I with the agree that it plurality was error for plain the Court of Appeals interpret second § sentence of 188.029 as that meaning “doctors must perform tests to find gestational fetal age, weight (CA8 lung maturity.” 851 F. 2d n. 5 1988) (emphasis original). When read with together first sentence of 188.029—which requires to “de- physician termine if the unborn child is viable by using exercising degree care, skill, proficiency exercised commonly ordinary skillful, careful, and prudent en- physician in similar gaged under practice the same or similar condi- *30 tions” —it would be contradictory nonsense to read the sec- ond sentence as a requiring physician to perform viability examinations and tests situations where it would be care- less and to do so. imprudent The plurality is quite correct: “the viability-testing provision makes sense if only the second sentence is read to require only those tests that are useful to ante, making subsidiary findings at viability,” 514, and, I would add, those only examinations and tests that it would not be imprudent or careless to perform the particular medical situation before physician.
Unlike the I plurality, do not understand these viability testing to conflict requirements with of the Court’s any past decisions state concerning of regulation abortion. There- fore, there is no necessity to accept State’s invitation to Wade, Roe v. reexamine the constitutional of validity 410 (1973). U. S. 113 Where there is no need to decide con- stitutional question, it is a venerable of this Court’s principle adjudicatory processes not to so, do Court will not “[t]he ‘anticipate question constitutional law in advance of the 526
necessity deciding A, 297 U. S. Ashwander v. TV it.’” (1936) Liverpool, (Brandeis, concurring), quoting J., 288, 346 Philadelphia v. S. Co. Commissioners New York & S. (1885). gener Emigration, itwill 33, 113 U. S. Neither ally law broader than is “formulate a rule of constitutional applied.” required by precise it is be to which facts “[i]t simply, the habit of is not at 347. S., Quite U. questions unless constitutional nature to decide of a the court absolutely necessary Burton of the case.” to a decision (1905). today States, The Court 283, 196 U. S. United every interpretation accepted of its abortion has the State’s existing precedents, every upheld, and has under our statute properly provision of that statute which is before us. Pre cisely any for this reason of Roe falls not into reconsideration judicial “good-cause exception” “fundamental rule of to this . . .” Three Tribes Fort Berthold restraint . Affiliated Engineering, C., 138, P. Reservation v. Wold concurring part post, J., See at 532-533 (Scalia, concurring judgment). inva When the constitutional lidity actually of a State’s abortion statute turns on the con enough validity Wade, stitutional of Roe v. there will be time carefully. Roe. so to reexamine And to do recognize § assessing especially important In 188.029it is appellees ruling appeal that the District did not Court’s § Supp. the first sentence of is constitutional. 662 F. 188.029 (WD 1987). accordingly, no dis- is, 420-422 Mo. There constitutionality pute parties between the before us over viability “presumption ante, weeks,” at 20 might anything the first of 188.029. If created sentence *31 previous arguably concern- conflictwith the decisions Court’s viability, ing I the of would think it is the intro- determination presumption. plurality, ante, 515, at duction of this see passage Mo. a from Planned Parenthood Central refers to of (1976): viability “The time 52, 428 U. S. when Danforth, may vary pregnancy, each and the deter- is achieved with particular must is, mination of whether a fetus is viable judgment responsible attending be, a matter the of the physician.” presumption viability The 20-week of the first argued (though, §188.029, sentence of it be could I would unsuccessfully), judgment respon- think, restricts “the attending physician,” by imposing physician sible on that the overcoming presumption. presumption burden of the This may “superimpos[ition] regulation [of] be a state on the medi- particular cal determination whether ante, fetus viable,” is physician’s at if judg- so, it but, is a restriction on the plurality properly ment not that is before us. As the inter- § prets nothing the second sentence 188.029, of it does more by unchallenged pre- than delineate means which the 20-week sumption viability may be overcome if those means are doing prudently employed. Contrary useful in so and can be plurality’s suggestion, to the ante, see the District § Court think did not the second 188.029 sentence of uncon- stitutional for this reason. Rather, both the District Court Appeals thought and the Court the second sentence to be precisely they interpreted unconstitutional because that sen- regulation impose tence to state on the determination of via- bility impose. that it does not
Appellees suggest § interpretation that the of 188.029 urged may “virtually eliminat[e] the State the constitu- Appellees Appellees tional this issue in case.” Brief for 30. propose deciding that therefore we should abstain from that provision’s constitutionality “in order the to allow state saving pro- courts to render the construction State has posed.” clearly Ibid. Where the lower fallen court has so necessary prudent. into error I not think do abstention is Accordingly, constitutionality I consider second interpreted sentence §188.029, State, to deter- actually mine whether constitutional issue eliminated. I 188.029, do think the not second sentence of as inter- preted by imposes degree regulation Court, on state viability any way the medical determination of con- prior plurality flicts with decisions of this Court. As *32 528 requirement
recognizes, imprudent, phy- the that, where not perform making sicians examinations and tests useful to sub- sidiary findings “promotes] viability to determine the State’s potential in interest human rather in life than maternal Ante, at health.” 515. No decision this Court held has may directly promote poten- that the not State its in interest viability possible. contrary. tial life when is In Quite the Thornburgh College Gyne- v. American Obstetricians and cologists, 476 S. U. Court considered a con- (1986), 747 challenge Pennsylvania requiring stitutional to a statute physician present during performed a second be an abortion viability possible.” guidance, is Id., “when at 769-770. For to Court looked the earlier in decision Planned Parent- City, hood Assn. Mo., Kansas v. Ashcroft, Inc. 462 upholding requiring pres- a Missouri statute physician during performed ence of second an abortion after viability. (opinion Id., at id., of Powell, J.); at 482-486 concurring judgment part dissenting in in (O’Connor, J., part). Thornburgh majority in struck down the Penn- sylvania merely exception statute because the statute had no emergency for situations and not because it found a constitu- promotion tional difference between the State’s of its interest potential viability possible viability in when life is and when Despite recog- S., is certain. 476 U. at 770-771. the clear Thornburgh majority Pennsylvania nition that respect, Missouri statutes differed this there is no hint opinion Thornburgh Court that the State’s interest potential depending life differs on whether it seeks fur- to postviability viability possible. ther that interest or when is Thornburgh appear all Thus, nine Members of the Court agreed constitutionally impermissible have that it is not regulations designed protect State enact the State’s potential viability possible. interest life id., when is See dissenting); at id., J., dis- J., (White, (O’Connor, senting). exactly That what Missouri has done 188.029.
Similarly, the basis for reliance the District Court and Appeals the Court of below on v. Franklin, Colautti § disappears U. properly S. 379 when 188.029is inter- preted. Colautti, In the Court observed: point viability] may [of
“Because this differ with each pregnancy, legislature may neither the nor the courts proclaim entering one of the elements into the ascer- viability gestation tainment of it weeks of or fetal —be weight any single other factor—as the determinant of compelling when the State has a interest in the life or Viability point.” health of the fetus. is the critical Id,., at 388-389. § interpretation rejected
The courts below, on the of 188.029 provision here, found the second sentence of that at odds passage with this from Colautti. 2d, See F. at 1074;662 Supp., § interpretation F. at 423. On this Court’s of 188.029 any it is clear that Missouri has not substituted of the “ele- entering viability” ments into the ascertainment of as “the compelling determinant of when the State has a interest the life or health of the fetus.” All the second sentence § require, imprudent, per- 188.029does is to when not making formance of “those tests that are useful to subsidi- added). ary findings viability.” (emphasis as to Ante, at 514 viability Thus, Colautti, consistent with remains the “critical § point” under 188.029.
Finally, halfheartedly, plurality suggests and rather marginal that the increase in the cost of an abortion created viability testing provision may Missouri’s make 188.029, interpreted, suspect even under this Court’s decision in Reproductive Akron v. Akron Health, Inc., Center (1983), striking 434-439 down second-trimester hospitalization requirement. ante, See at I 517. dissented opinion my from the Court’s in Akron because it was view apart that, even from Roe’s trimester framework I which problematic, Thornburgh, supra, continue to consider see (dissenting opinion), majority the Akron had distorted misapplied evaluating regula- its own standard for state applied tion of abortion which the Court had with fair consis- tency past: previability, regulation imposed in the that, “a on unduly a lawful abortion is not unconstitutional unless it bur- supra, Akron, dens to seek an abortion.” at 453 (internal omitted). (dissenting opinion) quotations performance requiring It is clear to me that of ex- determining aminations and tests useful to whether fetus viability possible, is viable, when medically imprudent and when it would not be impose so,
to do does not an undue bur- ground den on a woman’s abortion decision. On this alone *34 reject § suggestion interpreted I would that 188.029 as point, just is unconstitutional. More however, to the as I § any see no conflictbetween 188.029and Colautti or decision concerning ability give this Court a State’s effect to its potential § in interest I life, see no conflict between 188.029 opinion and the Court’s in Akron. The second-trimester hospitalization requirement imposed, in struck down Akron majority’s heavy, in unnecessary, “a view, and burden,” doubling S.,U. at 438, more than the cost of “women’s relatively inexpensive, access to a otherwise accessible, and procedure.” safe By Ibid.; abortion id., see also at 434. contrast, the cost of examinations and tests that could use- fully prudently performed be when a woman is 20-24 pregnant weeks to determine whether the fetus is viable only marginally, would if at all, increase the cost of an abor- tion. See Brief for American Association of Prolife Obstetri- Gynecologists (“At cians and twenty et al. as Amici Curiae 3 gestation, weeks an ultrasound examination to determine gestational age practice. routinely is standard medical It is provided by plaintiff clinics. An ultrasound examination effectively provide designated can findings all three of sec. (“A 188.029”); finding id., weight at 22 of fetal can be ob- tained from ges- the same ultrasound test used to determine (“There age”); id., tational at 25 are a number of different practice lung methods standard medical to determine fetal maturity twenty gestation. or more weeks The most sim- ple by and most obvious is inference. It is well known that lungs gestation. fetal do not mature until 33-34 weeks . . . gestational age If an assessment of the indicates that the thirty-three general finding child is less than weeks, a can be lungs finding made that the fetal are not mature. This can by physician making then be used his determination viability 188.029”); under section cf. Brief for American (no suggestion Medical Association et al. as Amici Curiae weight gestational age that fetal cannot be determined (another sonogram); from id., the same at 43 clinical test gestational age weight lung and, inference, fetal maturity, report period), is an accurate of the last menstrual citing Frey, Assessing Age, Smith, Johnson, & Gestational Physician 33 Am. Fam. 219-220 § required by Moreover, the examinations and tests 188.029 performed viability possible. are to be when This feature distinguishes of 188.029 it from the second-trimester hos- pitalization requirement majority. struck down the Akron recognized Thornburgh, compel- As the Court the State’s ling potential postviability interest life renders its interest determining point viability equally compel- the critical ling. supra, precedents, See at 527-528. Under the Court’s *35 the same cannot be said for the Akron second-trimester hos- pitalization requirement. opin- As I understand the Court’s plurality’s suggestion today Akron, ion in therefore, that validity Akron casts doubt on the of §188.029, even as interpreted Court has it, is without foundation and cannot provide reevaluating Accordingly, a basis for Roe. because Appeals misinterpreted the Court of §188.029, and because, properly interpreted, any 188.029is not inconsistent with prior precedents, of this Court’s I would reverse the decision Appeals. of the Court of
In I sum, concur in Parts I, II-A, II-B, and II-C of the opinion judgment Court’s and concur as to Part II-D. Scalia, Justice concurring part concurring judgment. join opinion
I I, II-A, Parts II-B, and II-C of the II-D, Court. As to Part I share Justice Blackmun’s view, post, effectively 556, at that it would overrule Roe v. Wade, I U. S. 113 think that should be done, but would explicitly. today doing itdo more Since we contrive to avoid any import, it, and indeed to avoid almost decision of national my I need not set forth reasons, some of which have been my colleagues well recited in dissents of in other cases. See, g., Thornburgh College e. v. American Obstetricians and (1986) Gynecologists, 476 747, U. S. 786-797 (White, J., dis- senting); Reproductive Akron v. Akron Center Health, (1983) (O’CONNOR, Inc., U. S. 416, 453-459 J., dissent- ing); supra, Roe Wade, at 172-178 (Rehnquist, J., dis- senting); (1973) Doe v. Bolton, 410 221-223 dissenting). J., (White, today’s
The outcome of case will doubtless be heralded as a triumph judicial statesmanship. It is that, not unless it is needlessly prolong statesmanlike this Court’s self-awarded sovereignty proper over a field where it has little business questions posed po- since the answers to most of the cruel are juridical sovereignty quite litical and not which therefore —a properly, great damage but to the of the Court, makes it the object organized public pressure political of the sort of democracy ought institutions in a to receive. “ assertion, ante, that a ‘fun- Justice O’Connor’s ” judicial requires damental rule of restraint’ us to avoid re- considering seriously. By finessing Roe, cannot be taken suggests, Roe we not, ibid., do as she adhere to the strict “‘deciding] ques- venerable rule that we should avoid disposed tions of a constitutional nature.’” We have not statutory procedural ground, this case on some but have deciding, decided, and could not avoid whether the Missouri requirements statute meets the of the United States Con- *36 only stitution. deciding choice available whether, question, that constitutional we should use Roe v. Wade as something the benchmark, or else. What is involved, there- avoiding fore, is not the rule of constitutional issues where possible, quite separate principle but the that we will not “‘formulate a rule of constitutional law broader than is re- quired by precise applied.’” facts to which it is to be general Ante, at principle, 526. The latter is a sound but one departed good often when from reason exists. Just this example, opinion Term, for in an authored Justice despite already the fact that we had held a ra- O’Connor, cially based unsupported set-aside unconstitutional because by evidence of identified discrimination, which was all that was needed to decide the case, we went on to outline the cri- properly tailoring teria for race-based remedies cases present. where such evidence is Richmond v. J. A. Croson Co., 488 U. S. 506-508 Also this Term, an opinionjoined by Justice O’Connor, we announced the con- deprivation stitutional rule that to confer with during counsel trial violates the Sixth Amendment even if no prejudice despite finding can shown, be our that there had deprivation been no such on the facts before us—which was all Perry that was needed to decide that case. v. Leeke, 488 (1989); U. S. 278-280 see id., at 285 (Kennedy, J., con- curring part). certainty I have not identified with deciding first instance of our a case on broader constitutional grounds absolutely necessary, assuredly than but it is no Marbury later than Madison, Cranch 137 where we constitutionally against held that mandamus could issue Secretary although unnecessary given State, that was holding authorizing our that the law issuance of the manda- bymus this Court was unconstitutional. spoken broadly
The Court has often more than needed precisely announcing the fashion at issue here, a new rule of constitutional law when it could have reached the identical by applying thereby displaced. result the rule To describe *37 534 joined: opinions In Dan- that recent two O’Connor Justice (1986), prior our 474 U. we overruled Williams, S. 327
iels v.
liberty
property
“deprivation”
holding
occur
could
that a
ignoring
through
governmental
negligent
the
acts,
availabil-
ground
ity
if a
that, even
alternative constitutional
postdeprivation
deprivation
reme-
occurred,
had
the State’s
process,
J.,
id.,
at 340-343
dies satisfied due
concurring
see
(Stevens,
judgment).
Gates, 462 U. S.
In Illinois v.
“two-pronged”
replaced
pre-existing
con-
213
we
totality-of-the-
probable cause
a
test for
with
stitutional
argu-
approach, ignoring the concurrence’s
circumstances
reached under
that
same outcome could have been
ment
concurring in
id.,
J.,
test,
the old
see
267-272
(White,
goes
judgment).
rare,
that
Court
out
course,
It is
way
acknowledge
judgment could have been
to
that its
its
making
adoption
its
rule,
reached under the old constitutional
unnecessary
ex-
decision, but even such
of the new
to the
one
acknowledgment
plicit
See Common-
is not unheard of.
(1981);Perez v.
wealth
v.
453 U.
Montana,
Edison Co.
S.
(1971).
sampling
Campbell,
For a
of other
It was arguable understanding Court’s contravened this the Missouri law than Roe rather I would have examined Roe v. Wade* and recon- question whether we should question, compared *That with footnote, Roe, hardly but a I think Justice and reverse worth sider Wade, incorrectly In Roe v. 410 U. S. well. answers that O’Connor physician right] [has that “the to adminis- we said 165-166 up according professional judgment treatment to his ter medical compelling justifications important provide points where state interests subsequently made clear that it is also a mat- have for intervention.” We (one points) viability of those is reached. judgment medical when ter of vary each viability may pregnancy, with time when is achieved “The is, be, viable must a particular fetus is determination of whether ” physician. judgment responsible attending Planned matter for of the Danforth, Section Parenthood Central Mo. v. 428 U. S. import prin- fair this purpose conflicts and hence the with the 188.029 perform require physician it tests that ciple because will sometimes performed not to determine whether a fetus is he would otherwise have judgment phy- legislative imposition It is on the viable. therefore a sician, the cost abortion. and one that increases of a.n *39 uphold the law it “does nevertheless because Justice O’Connor would Ante, at impose an on a woman’s abortion decision.” not undue burden required supported This the observation that the 530. conclusion is only procedure, an impose marginal cost on the abortion far less of tests a hospitalization requirement cost-doubling than the invalidated increase Health, Inc., Reproductive Akron S. 416 Akron v. U. Center for ante, challenged regulation The fact that the is See at 530-531. costly only in Akron tells us we cannot than what we struck down that less It not present on the basis of that earlier decision. does decide case burden,” I present requirement is an “undue and know tell us whether (or any determining particular this burden other for no basis that matter) equal justification conclude that that is “due.” One could with validity, the atten- question not. To avoid the of Roe v. Wade’s with it is principles for the of self- that will have for the and dant costs this Court guide the Court’s on the a standard that offers “no but governance, basis of (1930) Missouri, (Holmes, discretion,” Baldwin v. 281 U. S. own today. J., dissenting), merely irrationality of what we do adds to Similarly concept intro- irrational is the new that Justice O’Connor result, law her the notion of a State’s into the in order to achieve duces Ante, viability possible.” at 528. Since potential life when is “interest (not certainty) survivability possibility “viability” means the mere
examining newly the contravention. Given the Court’s con- abstemiousness, tracted what take, will it one wonder, must permit question? us to reach that fundamental The result today prior of our vote that we will not reconsider that opinion, wrong, if even most of the think Justices it is unless we have before us a statute that in fact contradicts it—and (under newly even then our discovered “no-broader-than- necessary” only requirement) problematical aspects minor expects legisla- Roe reconsidered, will be unless one state adopt provisions compliance tures to whose with Roe cannot argued straight appears even a be with It face. thus the mansion of constitutionalized law, abortion constructed overnight doorjamb in Roe Wade, must be disassembled by doorjamb, entirely brought and never no down, matter wrong may how it be. might today Of the four we courses have chosen reaf- —to explicitly,
firm Roe, to it overrule overrule it sub silentio, question responsible. or to avoid the last is the least —the question constitutionality On the I concur 188.029, judgment strongly in the of the Court and dissent from the manner which it has been reached. Blackmun,
Justice with whom Justice Brennan join, part concurring dissenting Marshall Justice part.
Today, Wade, Roe v. 410 U. S. funda- mental constitutional to decide women whether to ter- pregnancy, Although minate survive but not are secure. making the Court extricates itself from case this without single, change even incremental, in the law of abortion, the (the plurality and Justice Scalia would overrule Roe first *40 silently, explicitly) the other and return would to the States womb, “possible viability” possibility pos- outside the mean the must sibility survivability Perhaps opinion outside womb. our next will expand further, by the third trimester into the even approving second designed possible viability.” state action to take account of chance of “the virtually authority quintessentially unfettered to control the personal, life-directing intimate, and decision whether to carry Although today, yester- a fetus to term. no less than day, prohibit and the Constitution decisions of this Court enacting a State from laws that inhibit women from the mean- ingful right, plurality exercise of that of this Court im- plicitly every legislature invites state to enact more and more regulations provoke restrictive abortion in order to more and hope more cases, test that sometime down the line the procreative Court will return the law of freedom to the se- generally prevailed country vere limitations that in this be- January my memory plurality fore 1973. Never ahas judgment announced a of this Court that so foments disre- gard standing for the law our and for decisions. my memory plurality gone
Nor in has a about its business deceptive every in such a fashion. At level of its review, meaning from its effort to read the real out of Missouri precedents statute, to its intended evisceration of and its deafening protections silence about the constitutional that it jettison, plurality portent analy- would obscures the of its feigned plurality restraint, sis. With announces that its analysis “modified] leaves Roe “undisturbed,” albeit nar- and ” rowed]. totally Ante, at 521. But this disclaimer is mean- ingless. plurality opinion is filled with winks, and nods, knowing glances away to those who would do with Roe explicitly, anyone but turns a stone face to search of what plurality scope conceives as the of a woman’s under pregnancy the Due Process Clause to terminate a free from brooding simple the coercive and influence of the State. The plurality’s analysis, truth is that Roe would not survive the plurality provides protec- and that the no substitute for Roe’s tive umbrella. liberty equality
I fear for the I future. fear for the age the millions of women who have lived and come of in the years integrity since Roe was decided. I fear for the of, public for, esteem this Court. I dissent.
539 (h— parades through challenged the four The Chief Justice I sections of the Missouri statute shall seriatim. not this, do relegate my but shall most of to comments as those sections margin.1 Although disagree to the I with the Court’s con- 1 Court, Contrary I preamble, 1.205, § to the do not see how the realis tically may be construed as “abortion-neutral.” It declares that “[t]he “[ujnborn each being begins conception” life of human and that children protectable life, health, well-being.” have interests and Mo. Rev. Stat. 1.205.1(1) (2) (1986). §§ By preamble’s specific terms, and the decla these apply which, turn, rations to all interpreted of Missouri’s laws are to be protect rights to the possible unborn to the extent fullest under the Constitution of United and States the decisions of this Court. § Appeals concluded, 1.205.2. As the Court the Missouri Legislature regulations against “intended its abortion to be backdrop understood (CA8 1988). theory of its of life.” 851 F. 2d I note the United backdrop that acknowledgment places States’ this “a burden of uncertain scope performance by on the general a supplying abortions principle that may fill in present would existing prec whatever interstices be abortion edents.” Brief for United States Amicus on appellants Curiae behalf of 8-9, n. 5. my view, may expand
In a not indefinitely scope State of its abortion regulations by creating solely interests in fetal life are limited reference to the law statutory scheme, decisional of this Court. Such scope dependent whose on the uncertain disputed and limits of our hold- ings, will have the unconstitutional effect of chilling exercise of a wom- right to a pregnancy burdening an’s terminate and of the freedom of health professionals provide case, moreover, abortion services. In this be- preamble upon defines fetal as beginning cause life “the fertilization of male,” 188.015(3), sperm of a provision the ovum female of a also unconstitutionally devices, of contraceptive burdens use such as the “morning pill, may prevent and the after” operate pregnancy IUD which only conception after as defined in the statute. Brief See for Association Reproductive Health Professionals et al. as Amici Curiae 30-39. upholds §§ ground
The Court
188.210
188.215
on the
that the con-
stitutionality
provisions
from
holdings
these
follows
our
in Maher v.
Doe,
Roe,
(1977),
distinguishes this case from and Harris. In one of those cases, may it was said: “The State have made childbirth a more attractive imposed alternative . . . it . but . . no restriction on access to abortions Maher, already S., that was pub- not there.” at 474. U. Missouri’s ban, facility by contrast, beyond lic goes merely offering far incentives (as Harris), in favor of childbirth in Maher straightforward or a dis- association of personnel state-owned institutions and from abortion serv- (as Poelker). Here, by defining “public” every ices as in- health-care State, attenuated, stitution with some connection to the no matter how brought power Missouri has to bear the full force of its economic and con- discourage trol over essential facilities to exercising its citizens from their rights, constitutional even where the State could itself never be under- authorizing, supporting, having any positive stood as other association performance Dworkin, with the anof abortion. See R. The Great Abor- Case, Books, 29, 1989, p. tion New York Review of June 49. may
The difference is critical. Even if the State decline to subsidize or participate in the exercise of a pregnancy, woman’s to terminate a may pursue and even if a policies State its own abortion in distributing benefits, public may affirmatively availability it not constrict the of abor- by defining “public” tions in meaningful respects pri- that which all is knowledge percentage vate. With the certain that a private substantial ban, providers public facility health-care will fall under see Brief for Hospitals 10-11, National Association of Public as Amicus Curiae Missouri pregnant “leav[e] does not woman with the same if choices as the State “public provisions merely facilities,” its discussion of these prologue plurality’s to the consideration of the statute’s §188.029 viability-testing requirement, only section of —the plurality implicat- the Missouri statute that the construes as ing away opinion, Roe itself. There, tucked at the end of its plurality suggests a radical reversal of the law of abor- primarily, my tion; and I there, direct attention. plurality’s viability-testing provision In the view, the im- poses way a burden on second-trimester abortions as a furthering protecting potential the State’s interest in life may of the fetus. Since under the Roe framework, the State (as fully regulate potential not abortion the interest of life health) opposed plu- to maternal until the third trimester, *43 rality necessary, testing finds it in order to save the Missouri provision, to throw out Roe’s Ante, trimester framework. at 518-520. In flat Roe, contradiction to S., U. at the plurality potential concludes that the State’s interest life is compelling viability, upholds testing provision before operate any had chosen not to public hospitals all,” ante, 509; rather, at at public facility ban pregnant choices, leaves the woman with far fewer or, poor travel, for those too sick or too perhaps no choice at all. This aggressive and shameful infringement on the of women to obtain physicians, abortions consultation with their unsupported by any chosen interest, one, state much compelling less a violates the of Roe. command Indeed, appears recognize Justice O’Connor the constitutional diffi- presented by “public ban, culties Missouri’s rejects respond- facilities” challenge ents’ provisions “facial” to the ground on the that a facial chal- where, lenge here, cannot succeed as at applications least some of the Ante, challenged law are constitutional. disagree 523-524. IWhile approach, with this writing explicitly open Justice O’Connor’s leaves possibility applications “public that some may of the facilities” ban be un- constitutional, Maher, Poelker, regardless of and Harris. I concur in opinion, Part II-C of the holding respondents’ Court’s that § challenge moot, although 188.205 is I constitutionality note that the provision this might subject become the relitigation par between these Supreme ties should the adopt Court of Missouri interpretation an provision accepted that differs from the one here. See Deakins v. Mona ghan, 193, 201, 484 U. S. n. 5 “permissibly because it Ante, furthers” state interest. at 519.
A outset, At the I note that in its haste to limit abortion rights, plurality compounds analysis by the errors of its needlessly reaching questions out to áddress constitutional actually presented. that are not The conflict between purportedly 188.029and Roe’s trimester framework, which plurality past drives the to reconsider our decisions, is a con- product aggressive trived misreading conflict:the of an viability-testing requirement needlessly appli- and a wooden cation of the Roe framework. plurality’s §188.029 reading is irreconcilable with plain language derogation of the statute and is in of this
Court’s
ap-
settled view that “‘district courts and courts of
peals
interpret
are better schooled in and more able to
respective
Frisby
laws of their
Schultz,
States.’”
(1988), quoting
Spokane
Brockett v.
Arcades,
(1985). Abruptly
Inc.,
setting
Had the read the as it statute would have written, properly had no cause to reconsider Roe As framework. viability-testing provision pass construed, not does constitutional muster under a even standard, rational-basis applied the least restrictive level of review this Court. Optical Co., See Williamson v. Lee By mandating lung weight tests to determine fetal matu- rity every thought gesta- fetus be more to than 20 weeks age, requires physicians tional the statute to undertake procedures, pre- such amniocentesis, as that, the situation justification, impose significant sented, have no medical addi- pregnant tional health risks on both the woman and the fetus, protect- and bear rational no relation State’s interest ing § arbitrary imposi- fetal life.3 As written, 188.029is an expense, furthering tion discomfort, risk, and no discern- except procurement ible interest to make the an abortion possible. as arduous and difficult it Thus, not for were 2 1 consider irrefutable Justice interpretive Stevens’ discussion of this point. post, See at 560-563. only Court The District found that “the lung method to [fetal] evaluate amniocentesis,” maturity procedure “imposes a signifi additional cant health for both pregnant risks woman fetus.” and the 662 F. (WD 1987). Supp. Mo. Yet the medical establishes that literature require contrary amniocentesis for all after 20 abortions weeks would be practice and, moreover, purpose to sound would medical be useless for the lung maturity of determining until no earlier than 28 and 30 weens between Ibid.; gestational age. see Brief for also American Association Medical Thus, et al. as Curiae 41. require finding Amici were 188.029 read to lung maturity, it require physicians perform highly would intrusive procedure yield of risk that would no question result relevant to viability. *45 import plain of plurality’s the effort to avoid tortured the testing provision § as the have struck down it could 188.029, irrespective patently the Roe framework.4 of irrational straightforward in resolution, plurality this eschews The precipitating Far from hope crisis. a constitutional of the attempts difficulty, plurality avoiding the constitutional jurisprudence engineer in our retrenchment a.dramatic exaggerating construction its untenable the conflict between framework. Roe trimester 188.029and the of State, the Roe framework contests that under
No one may potential promote life, human in its interest order nontherapeutic regulate proscribe once abortions and even If, Roe, at 164-165. S., 410 U. the fetus becomes viable. simply testing provision plurality appears hold, as medically appropriate requires physician sound to use a actually when is viable the fetus tests to determine whether (and gestational age greater than 20 weeks the estimated the mar- found to be the District Court therefore within what 515-516), viability, I little or gin ante, then see at of error for progeny, Nothing any Roe, its or Roe.5 no conflictwith compelling may interest its not effectuate holds that a State by seeking that potential to ensure fetus in the life of viable mistakenly the inherent aborted because of fetus is no viable age. require- gestational precision A lack of estimates way finding viability, physician or one make a ment that a 1074-1075, that, 2d, Appeals, 851 F. agree 4 I also with Court Colautti contrary decision written, § to this Court’s 188.029 is Franklin, 379, 388-389 439 U. S. §188.029. I precisely its construction of plurality never states mainly its that the plurality’s views on assertion my synopsis of the base physician requirement that the light of its provision be read entire must judgment, and that professional reasonable only act in accordance with perform physician irrelevant requirement provision imposes no may Ante, plurality that the To the extent at 514-515. dangerous tests. doctor, that a require other than those provision to tests reading be necessary to a would deem professional judgment, exercising reasonable legitimate to a viability, no rational relation finding provision bears interest, and cannot stand. governmental *46 range possi- every of the that falls within fetus other, for
the recog- preserve viability the State’s than no more does ble correctly points plurality Although, authority. as the nized requirement im- testing the effect of have would such a out, where posing abortions on second-trimester additional costs these costs viable, not the fetus was indicated that the tests necessary merely a accommoda- to, and incidental would be prohibit unquestioned right nonthera- the State’s of, tion viability. point the short, In peutic of after the abortions by plurality, testing provision, is consist- the as construed effortlessly upheld be and could the Roe framework ent with current doctrine.6 under plurality disingenuous, that the then, it and is,
How ironic
adopting
the
Appeals
construction of
for
the
of
scolds
Court
Ante, at
difficulties.
constitutional
that fails to avoid
statute
ante,
527-
O’Connor,
at
by
convincingly
As
demonstrated
Justice
by
contrary. As noted
the
by
plurality, are not to
cases cited
the
the
S.,
388-389,
Franklin,
and
439 U.
plurality,
the
both Colautti
(1976),
514, 515. the statute, the invalidating testing provision avoid on what should have grounds; having been noncontroversial constitutional so, done plurality headlong deeper however, the rushes into a much brushing past thicket, constitutional an obvious basis for §188.029 upholding pretext scuttling in search of a Evidently, plurality’s per- trimester framework. from spective, problem Appeals’ the real with the Court con- *47 struction of 188.029is not that it raised constitutional dif- ficulty, wrong difficulty— but that it raised the constitutional implicating plurality one not Roe. The has remedied that, judicial traditional canons of construction and forbearance notwithstanding.
B Having up set the conflict 188.029 between and the Roe plurality summarily trimester framework, the discards Roe’s analytic principle core as “‘unsound in and unworkable in practice.’” quoting Ante, Garcia v. San Antonio Metropolitan Authority, Transit 469 S. 528, U. 546 plurality key This is so, claims, because the elements appear framework not do the text the Constitu- closely regu- tion, because the framework more resembles a latory body code than a doctrine, constitutional and be- potential cause under the framework the interest in State’s compellingonly viability, human life is considered after when, equally compelling throughout fact, in nancy. preg- interest is plurality Ante, at 519-520. The does not bother to explain alleged masquer- these flaws in Roe. assertion Bald reasoning. object, clearly, quite as per- ades The is not to prevail. suade, but to
1
plurality opinion
The
argu-
is far more remarkable for the
ments that it does not advance than for those that it does.
plurality
join,
The
does not even mention, much less
the true
jurisprudential
underlying
debate
case:
this
whether the
general right
Constitution
an
includes
“unenumerated”
privacy
recognized many
notably
decisions,
of our
most
Connecticut,
Roe, and,
Griswold v.
mesters and
not
in the
and
Constitution
—do
are, therefore, somehow
with a
inconsistent
Constitution cast
general
Ante,
terms.
at 518-519. Were this a true con-
ju-
we
cern, would have to
abandon most
our constitutional
risprudence.
plurality
As the
knows,
know,
well
or should
the “critical elements” of countless
doctrines
constitutional
appear in
nowhere
the Constitution’s text. The Constitution
example,
mention,
makes no
for
of the First Amendment’s
proving
“actual malice” standard for
libels,
certain
New
see
(1964),
Sullivan,
York Times Co. v.
With
the Roe framework, the
constitu-
principle,
right,
tional
indeed the fundamental constitutional
developed
right
privacy,
g.,
it
which was
is the
see, e.
(1965),
species
Connecticut,
Griswold v.
a
“
Id., at 772.
It is this
person belongs
‘moral fact that a
to himself and not others
society
(Stevens,
nor to
whole,’” id.,
as a
at 777, n. 5
J.,
concurring), quoting
Correspondence,
Fried,
6 Phil. & Pub.
(1977),
Aff. 288-289
that is
found
the Constitution. See
Roe, 410
S.,U.
at 152-153. The trimester framework sim-
ply
privacy
defines and limits that
in the abortion
destroy,
legitimate
context to
not
accommodate,
a State’s
protecting
pregnant
interest in
the health of
women
preserving potential
Id.,
human life.
at 154-162. Fashion-
ing
rights
such accommodations between individual
and the
legitimate
government, establishing
interests of
benchmarks
competing
and standards with which to evaluate the
claims
government,
very
of individuals and
lies
heart
con-
adjudication.
stitutional
To the extent that the trimester
enterprise,
only
framework is useful
this
it is not
consist-
interpretation,
necessary
ent with constitutional
but
to the
just
paramount authority
wise and
exercise of this Court’s
scope
rights.
define the
of constitutional
plurality
alleges
next
that the result of the trimester
legal
framework has “been a web of
rules that have become
increasingly
resembling
regulations
intricate,
a code of
body
rather than a
Ante,
constitutional doctrine.”
at 518.
Again,
genuine
if this were a true and
concern, we would
jurispru-
have to abandon vast areas of our constitutional
plurality complains
dence. The
that under the trimester
distinguished
city
framework the Court has
between a
ordi-
requiring
per-
nance
that second-trimester abortions be
requiring
formed
clinics and a state law
that these abor-
performed
hospitals,
requiring
tions be
or between laws
by physi-
that certain information be furnished to a woman
requiring
cian or his assistant and those
that such informa-
physician exclusively.
tion be
Ante,
furnished
at 518,
citing Simopoulos Virginia,
n.
462 any U. S. 416 Are these distinctions finer, “regulatory,” or more than the distinctions we have often jurisprudence, drawn in our First Amendment where, for ex- ample, program permit- we have held that a time” “release ting public-school grounds during students to leave school religious school hours to receive instruction does not violate though pro- Establishment Clause, even a release-time gram permitting religious grounds instruction on school does Compare violate the Clause? Clauson, Zorach v. 343 U. S. (1952), 306 with Illinois ex rel. v. McCollum Board Edu- Champaign cation County, School Dist. No. 333 U. S. (1948). jurisprudence recog- Our Fourth Amendment nizes factual distinctions no less intricate. Just this Term, example, we held that while an aerial observation from a helicopter hovering any at 400 feet does not violate reason- expectation privacy, able expectation privacy such an helicopter would be violated observation from an un- usually Riley, low altitude. Florida v.
(1989)
concurring
judgment). Similarly,
J.,
(O’Connor,
in a
although
Sixth Amendment case, the Court held that
overnight
attorney-client
an
ban on
communication violated
constitutionally guaranteed right
to counsel, Geders v.
States,
United
That numerous constitutional doctrines result in narrow
differentiations between similar circumstances does not mean
adjudication
regula-
that this Court has abandoned
in favor of
process
tion. Rather, these careful distinctions reflect the
adjudication
highly
constitutional
which
itself,
is often
fact
specific,requiring such determinations as whether state laws
“unduly
are
burdensome” or “reasonable” or bear a “rational”
“necessary”
relation to asserted state
In
interests.
a re-
process
cent due
case,
wrote for the
Chief
Justice
“[M]any
Court:
branches of the
law abound
nice distinc-
may
thought
tions that
be troublesome but have been
none-
necessary:
theless
‘I do not think
need
we
trouble ourselves
*51
thought
my
depends upon
with the
that
view
differences of
degree. The whole law does so as soon as it is civilized.’”
(1986), quoting
v. Williams,
Daniels
474 U.
327,
S.
334
LeRoy
Chicago,
Co.,
Fibre Co. v.
M.
P.
& St.
R.
232 U. S.
(1914)(Holmes,
partially concurring).
340,
J.,
degree” fully
holdings
These “differences of
account for our
Simopoulos, supra,
supra.
in
Akron,
Those decisions
judgment
rest on this Court’s reasoned and accurate
that
hospitalization
doctor-counseling requirements unduly
pregnancy
burdened the
of women to terminate a
rationally
were not
related to the State’s asserted interest in
pregnant
Virginia’s substantially
the health of
women, while
regulations
unduly
less restrictive
were not
burdensome and
rationally
did
serve the State’s interest.8
That
Court
judgment
evaluating
markedly
exercised its best
in
these
dif-
statutory
ferent
schemes no more established the Court as an
quoting
“‘ex
board,”’ ante,
medical
519,
at
Planned
officio
Parenthood
Mo. Danforth,
Central
v.
Finally, plurality asserts that the trimester framework cannot potential stand because the State’s interest in life is compellingthroughout pregnancy, merely viability. not after *52 opinion Ante, at 519. The contains not one word of rationale for its view of the State’s interest. This “it-is-so-because- we-say-so” jurisprudence nothing constitutes other than an attempted persua- exercise of brute force; reason, much less place. sion, has no answering plurality’s
In the claim that the State’s interest in compelling throughout the fetus is preg- uniform and nancy, improve upon I cannot what Justice has Stevens written:
“I should think it obvious that the in State’s interest protection embryo of an if that interest is defined —even ‘protecting as those who will be citizens’. . . —increases progressively dramatically organism’s capac- and as the ity pain, experience pleasure, to feel to survive, and to surroundings day by react day. to its increases The development pregnancy of a fetus—and itself—are not govern- static and the conditions, assertion that simply ignores reality. ment’s interest is static this . . . religious [UJnless ‘person’ view that a fetus is a is adopted well-recognized . . . there is a fundamental and being; difference between a fetus and a human indeed, if permissibility of termi- difference, there is not such scarcely nating be left to the will a fetus could the life of may legislatures. be if distinctions And the state being in terms of the a fetus and a human between drawn though protection the fetus interest their state —even represents seems ‘those who will be citizens’—it one of may argue quite not also that distinctions to me odd to protecting the state interest be drawn between freshly protecting egg the state interest fertilized and fully 9-month-gestated, the eve of sentient fetus on supported Recognition not of this distinction birth. by history only by logic, ex- and our shared but also (foot- Thornburgh, periences.” at 778-779 S., 476 U. omitted). note Roe, S., at 129-147. also 410 U.
See my part, Mem- convinced, I remain as six other own For years ago Roe convinced, were that the bers of this Court fairly, viability particular, standard and the framework, effectively safeguard sensibly, the consti- functions to and recognizing pregnant women while tutional liberties potential accommodating human life. interest the State’s biological viability facts and truths of reflects the line prior development; that threshold moment it marks fetal separate from the woman a fetus cannot survive which objectively regarded subject reasonably be cannot paramount rights those of from, to, or interests distinct viability pregnant stand- time, At the same *53 woman. fact that as the fetus of the undeniable ard takes account dependence postnatal as it loses its form, evolves into its interest the fetus’ environment, State’s on the uterine fostering regard potential human life and in for life, human practical compelling. general, matter, As a be- becomes point viability “quickening” at which a follows cause —the viability in her womb—and because feels movement woman age, gestational it establishes 23 weeks no earlier than occurs regulating easily applicable while abortion standard an providing pregnant ample woman time exercise her fun- responsible physician damental with her to terminate pregnancy.9 Although previously her I have stated for a majority rights “[constitutional of this that Court do not al- ways easily boundaries,” have ascertainable to seek and es- special responsibility tablish those boundaries remains the Thornburgh, this Roe, Court. In S., 476 U. at 771. we dis- charged responsibility logic compelled. that as and science plurality today argument advances not one reasonable why judgment wrong our in that case was and should be abandoned.
C Having opportunity contrived an to reconsider the Roe having framework, and then discarded that framework, the plurality testing provision unobjectionable finds the because “permissibly it protecting po- furthers the State’s interest newly tential Ante, human life.” at 519-520. This minted 9Notably, plurality neither the nor Justice O’CONNOR advances the catch-phrase now-familiar criticism of the Roe framework that because the point viability will with technology, recede advances medical Roe “is Akron, clearly (dis S., on a with collision course itself.” See U. at 458 senting opinion). critique This has no medical foundation. As the medi cal literature and conclusively the amicus briefs filed in this case demon strate, viability “there is an ‘anatomic threshold’ for fetal of about 23-24 gestation.” weeks of Brief for American Medical Association et al. as Amici Curiae 7. See also Brief for Distinguished Phy Scientists and sicians, Laureates, including 11 Nobel as Amici Curiae 8-14. Prior to time, that organs sufficiently provide the crucial are not mature to the mu tually sustaining prerequisite survival, functions are to extrauterine viability. Moreover, “no technology bridge development exists to gap three-day embryo between the 24th gesta culture and the week of tion.” Fetal Survivability, Report Extrauterine to the New York State Task Force on Life and the Law 3 Nor does the medical commu nity development any technology possible believe that the such in the Id., words, foreseeable future. 12. In other the threshold of fetal via is, bility remain, and will no different from what it was at the time Roe was contrary pure decided. Predictions to the are science fiction. See Brief Group Afor of American Law Curiae Professors as Amici 23-25. *54 totally meaningless. a chal- circular and Whether standard is legitimate “permissibly lenged regulation a furthers” abortion question answer in abor- the courts must state interest is apply. keeping In standard for courts to cases, tion not the opinion, plurality attempt to its the makes no with the rest of explain justify in abstract standard, its new either or to “permissibly applied in this case. Nor could it. The or as independent meaning, consists has no furthers” standard may majority nothing be- other than what of this Court any given plurality’s any given The moment case. lieve at dressed-up nothing appears than a ver- to be more novel test review, this Court’s most lenient level of rational-basis sion plurali- scrutiny. thing is were the clear, however: One adopted by ty’s “permissibly the Court, furthers” standard purposes, practical Roe overruled.10 would be for all completely disregards “permissibly furthers” standard recognition that minimum of Roe: the Court’s irreducible right to de- limited fundamental constitutional has a a woman pregnancy. terminate a That receives whether to cide opinion. recognition plurality’s meaningful in the written no poten- plurality’s view, the State’s interest Since, conception, compelling as of the moment of tial life is every only hin- abolished, if is served abortion is therefore ability must be to obtain an abortion to woman’s drance “permissible.” Indeed, hindrance, the more severe the (and effectively permissibly) interest would State’s more prohibition A tax on abortions or a criminal be furthered. satisfy plurality’s So, standard. for that both would Akron, phe Writing Justice Powell observed the same Court “In nomenon, hypothetical response to the dissent in that ease: though in sum, uphold virtually any regu appears that the dissent would abortion it appears height test. It also that even where lation under a rational-basis virtually appropriate, uphold scrutiny the dissent would ened is deemed pre any abortion-inhibiting regulation because of the State’s interest analysis wholly incompatible potential human life. . . . This serving right recognized in Roe v. Wade.’’ of the fundamental with the existence S., 420-421, n. 1. U. *55 requirement pregnant matter, would that a woman memo- today’s plurality opinion seeking rize and recite before an abortion. plurality pretends explaining survives,
The that Roe that here, the facts of this case differ in Roe: Missouri from those only potential has its at chosen to assert interest life point viability, Roe, Texas had asserted that whereas, point conception, criminalizing interest from the all abor- except Ante, where the life at tions, ofthe mother was stake. at This, course, 521. is a without a distinction difference. plurality repudiates every principle The for which Roe stands; good possibly conscience, it cannot believe that Roe lies merely upon “undisturbed” because not call this case does Court to reconsider the If statute, Texas or one like it. permits any Constitution a State to enact statute that reason- ably potential furthers its interest in if life, and that inter- why conception, est arises as of would the Texas statute fail pass suspects plurality agrees. to muster? One that the It impossible plurality opinion especially to read the its paragraph, recognizing implicit final without its invitation every State to enact more and restrictive more abortion potential laws, and to assert their interest life as of the mo- conception. satisfy plurality’s ment All these laws will nonscrutiny, regime until sometime, new of old dissenters appointees plurality and new will declare what the intends: longer good that Roe is no law.11 plurality Roe, The claims that its right treatment of and a woman’s decide whether to a pregnancy, terminate true the “hold[s] balance be puts tween that which beyond the Constitution the reach of the democratic Ante, process which it does not.” at 521. This is unadulterated (the plurality’s nonsense. The balance weight matches a lead State’s al legedly compelling conception) interest fetal life as of the moment of (a against “liberty a feather pregnant plu interest” of woman that describes). mentions, rality barely plurality’s much less balance —no places nothing, virtually beyond balance at nothing, the reach of the all— process. democratic Ante, candidly argues that this is all for the best. Justice Scalia agree. very purpose 532. I cannot “The Rights of a Bill of was to with-
D bang, whimper,” plurality Thus, “not awith but a dis- generation, cards a landmark case of the last and casts into hopes every darkness the and visions of woman in this coun- try guaranteed who had come to believe that the Constitution right ability unique her the to exercise some control over her plurality to bear children. The does so either in- oblivious or sensitive to the fact that millions women, and their fam- right reproduc- ilies, have ordered their lives around the tive choice, and that this has become vital to the full *56 participation political of women the economicand walks of plurality way again American life. The would clear the once government upon physical to force women the labor and specific psychological may and direct medical and harms that accompany carrying plurality a fetus to term. The would way again conscript body clear the for the State to a woman’s upon and to force her a Roe, “distressful life and future.” 410 S.,U. at 153. experience, result, as we know from see Cates & Illegal
Rochat, Abortions in the United States: 1972-1974, Family Planning Perspectives 8 86, 92 would be that every year desperation, hundreds of thousands of women, defy place safety would the law, and their health and in the unsympathetic back-alley unclean and hands of abortionists, they attempt perform upon or would to abortions themselves, subjects draw certain from the political vicissitudes of controversy, place beyond majorities them the reach of and officials and to establish them as legal principles applied by to be life, the courts. liberty, One’s and property may vote; . . . they not be submitted depend on the outcome of Virginia Barnette, elections.” West no Board Education v. 319 U. S. (1943). 624, In a Nation liberty, that cherishes ability of a woman biological operation to control body of her and to determine with her responsible physician carry whether or not to a fetus to term must fall sphere within that autonomy limited beyond individual that lies the will power or any majority. transient This Court stands as the ultimate guarantor privacy, regardless of that zone of disputes the bitter to which Roe, may give our decisions rise. In and our numerous reaffirming cases Roe, we discharge did no more than duty. our constitutional espe- Every year, many women, with disastrous results. cially poor minority women, would die or suffer debilitat- morality ing physical trauma, in the name of enforced or all may religious compassion, it be. dictates lack of understandings aspirations of American Of the and settled consequences of what it women, of the inevitable and brutal doing, tough-approach plurality a utters not word. profoundly This silence is callous. It is also destructive of as an To overturn a constitutional this Court institution. undertaking. grave a con decision is rare To overturn personal stitutional decision that secured fundamental erty lib unprecedented persons in our to millions of would be years history. Although of constitutional the doctrine of applies stare decisis in con somewhat diminished force with ordinary generally, ante, stitutional cases con 518, even “any departure stitutional cases from . stare decisis de . . special justification.” Rumsey, mands Arizona 467 U. v. S. Vasquez Hillery, S. See also 474 U. (1986)(“[T]he any will de careful observer discern straight past path in our have tours from of stare decisis only reasons, occurred for articulable when Court has obliged bring opinions agreement ex felt perience ‘to into with its *57 newly quoting
and with Burnet ascertained,’” facts (Bran (1932) Co., v. Coronado Oil & 285 U. S. 412 393, Gas dissenting)). requirement justification ap deis, J., This plies abroga unique where, here, with force the Court’s precedent destroy people’s belief, tion of past based on would firm they possess unabridge decisions of this that an Court, right able to certain conduct.12 undertake (1989) (Scalia, Gathers, 805, J., v. 12 Cf.South Carolina 490 U. S. 824 (“[T]he increases, respect rather dissenting) prior than accorded decisions decreases, society adjusts itself to their exist antiquity, with their as the ence, premised validity”). surrounding on their and law becomes
Moreover, “There for the Court in Akron: are as Justice Powell wrote applying especially compelling adhering to decisis reasons for stare special principles Roe v. was with care. Wade. That case considered Term, argued during reargued It and extensive was first the 1971 —with
559 perhaps great length plural- As at discussed too above, the ity attempt carry heavy makes no serious to “the burden of persuading changes society . . . that inor the law dictate” progeny, abandonment Roe Vasquez, and its numerous greater 474 S.,U. at explaining 266, much less the burden of abrogation personal of a fundamental freedom. Instead, plurality pretends standing, that it leaves Roe and underlying refuses even to discuss the real issue this case: whether the right Constitution includes an unenumerated privacy encompasses right a woman’s to decide whether pregnancy. to terminate a plurality To the extent that the does criticize the pure Roe framework, these criticisms are ipse dixit.
This comes at a
“per-
cost. The doctrine of stare decisis
society
presume
principles
mits
that bedrock
are founded
proclivities
in the law
rather than
of individuals, and
thereby
integrity
sys-
contributes to the
of our constitutional
government,
appearance
tem of
both
and in fact.” 474
Today’s
U.
atS.,
265-266.
politi-
decision involves the most
cally
legal
By
divisive domestic
refusing
issue of our time.
explain
justify
proposed revolutionary
or to
its
revision in
by refusing
only
the law of
by
abortion, and
to abide not
our
precedents,
reconsidering
but also
our canons for
those
precedents,
plurality
charges
invites
of cowardicé briefing
following
The Chief
Term. The decision
joined
was
—the
Justice
Since Roe
and six other
Justices.
January
was decided in
repeatedly
consistently
the Court
accepted
applied
has
the basic
principle that a woman
has a fundamental
highly personal
to make the
choice whether
pregnancy.”
S.,
or not to terminate her
462 U.
See,
g.,
e.
Danforth,
Planned Parenthood
n. 1.
Central Mo. v.
428
Baird,
(1976);
Doe,
Bellotti v.
Beal v.
(1976);
U. S. 52
For at today, least, law of abortion stands undisturbed. For of today, the women this Nation retain the still liberty control their destinies. But the are evident and signs very ominous, and a chill wind blows.
Justice Stevens, concurring part dissenting part. joined Part II-C of the I
Having opinion, Court’s shall not § comment on 188.205 the Missouri statute. With respect to the §§of challenged portions 188.215, 188.210 and I agree ante, with Justice Blackmun, 539-541, at n. 1 (concurring part and dissenting part), record identifies a sufficient number of unconstitutional applications support the Court of Appeals’ judgment invalidating those provisions. The reasons I would also affirm why that court’s invalidation § 188.029, §§ the viability testing provision, and 1.205.1(1), (2) of the preamble,1 require separate explanation.
h—I It seems to me that Part II-D of its opinion, plural- ity strains to § a construction on place 188.0292 that enables (2) (1) prefers 1 The State §1.205.1 refer to subsections “prefatory Appellants 9; statements with no substantive Brief effect.” id,., (CA8 1988). 21; 1071, see at see also 851 F. 2d It is true that 1, § 1.205 is Chapter codified in Laws in Force and Construction of Stat utes, I, Statutes, of Title Statutes, Laws and Missouri Revised while provisions all other are at codified in Chapter Regulation issue Abortions, XII, of Title Public Health and But Welfare. because 1.205 ante, appeared beginning 500-501, at the of House Bill No. see entirely appropriate it is to consider it preamble as a relevant to those regulations. provision testing states: Physician, viability,
“188.029. determination duties physician performs “Before an abortion on a woman he has reason to twenty child of carrying gestational believe is an unborn more weeks
561
modify
“[W]e
it to
Roe
conclude:
would
and narrow
and suc-
ceeding
ante,
cases,”
at 521. That statement is ill advised
modify
slightly
holdings
because there is no need to
even
the
§188.029.
prior
uphold
of
in
cases
order to
For the most
plausible
construction,
nonliteral
as both Justice
Black-
(concurring
part
dissenting
ante, at
542-544
and
in
mun,
part),
(concurring
ante,
and Justice
at 525-531
O’Connor,
part
concurring
judgment),
and
have demonstrated, is
entirely
precedents.
constitutional and
consistent with our
accept
I am unable to
construction of
Justice
O’Connor’s
§in 188.029,
the second sentence
I
however, because believe
by
controlling principles
statutory
it is foreclosed
two
of
in-
terpretation.
practice
accept
it is our
First,
settled
“the
interpretation of state
in which
law
the District Court and
Appeals
if
Court
have concurred even an examination
guidance might
jus-
of the state-law issue without such
have
Bishop Wood,
tified a different conclusion.”
v.
426 U. S.
(1976).3
particular
“[t]he
appli-
341,
Second,
346
fact that a
might
cation of the clear terms of a
be
statute
unconstitu-
provide
justification
ignoring
tional does not
us with a
plain meaning
Department
of the statute.” Public Citizen v.
(1989)
Justice, 491 U.
481
440,
J.,
S.
concur-
(Kennedy,
age,
physician
if
shall first determine
the unborn child is viable
care, skill,
exercising
degree
using
proficiency commonly
that
and
skillful, careful,
ordinarily
prudent physician
exercised
engaged
practice
making
similar
under the same or similar conditions.
In
this
viability,
physician
perform
per-
determination of
shall
or cause to be
necessary
formed such medical examinations and tests as are
to make a
finding
gestational age, weight,
lung maturity
of the unborn
findings
viability
child and shall enter such
and determination of
in the
§
Mo. Rev.
medical record
mother.”
Stat.
188.029
Co.,
States v. Durham Lumber
522,
United
3 See also
363
U. S.
526-527
Clark,
Propper
Hillsborough
(1960);
472,
(1949);
v.
337
486-487
U. S.
v.
Cromwell,
Dwyer,
620,
(1946);
Huddleston v.
326 U. S.
322 U. S.
Co.,
(1944);
MacGregor
Mutual
Ins.
State
Life
curiam).
(1942) (per
ring
judgment).4
agree
In
I
case,
this
with the Court
(CA8
Appeals,
1988),
My interpretation plain language supported by of the is the particularly pream structure of the statute as a whole, the “begins conception” ble, which “finds”that life at and further provide commands that state laws shall be construed to the protection every maximum stage to “the unborn child at development.” (1986). §§1.205.1(1), Mo. Rev. Stat. 1.205.2 agree “[ojbviously, I purpose with the District Court that the protect potential of this law is to life of the fetus, rather safeguard Supp., than to maternal health.” 662 F. at 420. reading accomplish A goal. literal of the statute tends to “incongruous,” Thus it is not ante, at 515, to assume that Legislature trying protect potential Missouri was by making human life of nonviable fetuses the abortion deci costly.5 contrary, sion more On the I am satisfied that the Appeals, correctly Court of as well as the District Court, con Legislature exactly cluded that the Missouri meant what it § said in the second sentence of 188.029. I am also satisfied,
4We have interpret stated that we will a federal statute to avoid serious problems constitutional if “a interpretation reasonable poses alternative no question,” States, constitutional 858, Gomez v. (1989), United 490 U. S. 864 if fairly possible or “it is interpret the statute in a manner that ren valid,” constitutionally Beck, ders it Communications Workers v. 487 U. S. 735, plainly “unless such contrary construction is to the in Congress,” tent of Corp. Edward J. DeBartolo v. Florida Coast Build Gulf ing Council, Construction Trades 485 U. S. testing provision, As with the plurality opts for a construction of this statute that 2d, conflicts with Appeals, those of the Court of 851 F. 1076-1077, (WD Court, 1987). Supp. and the District 662 F. Mo. that the test Blackmun,
for the reasons stated
Justice
manifestly
ing provision
under
unconstitutional
William
(1955), “irrespective
Optical Co.,
son v. Lee
rHHH “conception fertiliza- statute defines as the Missouri by sperm male,” Mo. Rev. tion of the ovum of a female 188.015(3)(1986), though even medical texts Stat. standard implantation equate “conception” uterus, with occur- days ring after fertilization.6 Missouri’s declara- about six regulation only previability implies abor- therefore not tion contraception such as the but also of common forms of tions, morning-after pill.7 preamble, Because IUD upon the threatens serious encroachments context, read professional, liberty pregnant I woman and the health *61 plaintiffs, appellees persuaded have us, am that these before hours, Fallopian 72 egg in the woman’s tube for 6 Thefertilized remains cavity, where cell division continues for another then travels to the uterus’ D. Dava- implantation 72 in the uterine wall. Mishell & V. hours before Endocrinology jan, Infertility, Contraception Reproductive and 109-110 (2d 1986); Reproductive Health Pro ed. see also Brief for Association of alia, Brief) (ARHP Amici inter Citriae (citing, 31-32 fessionals et al. as (17th MacDonald, Gant, Pritchard, & N. Williams Obstetrics 88-91 J. P. 1985)). ultimately im “[0]nly per 50 cent of fertilized ova become ed. 32, (citing Contraception, n. 25 The planted.” ARHP Brief Post Coital 1983)). 16, (Apr. Lancet 856 7 device, IUD, commonly primarily called an “works An intrauterine Burnhill, egg implanting.” from Intrauterine Con preventing a fertilized (S. 271, Corson, Derman, Tyrer R. L. traception, Fertility 280 & Control 1985). (1988); 801.427, p. 21 32 ARHP Brief 34-35. eds. See also CFR contraceptive may prevent implantation include methods Other intercourse, estrogen pills “morning-after pills,” high-dose taken after 33, 486, pill a particularly rape, ARHP Brief and the French RU cases of contraception “during period between that works the indeterminate abortion,” id., pills estrogen “combined” version of at 37. Low-level —a daily pill may prevent the fertil ordinary, ingested birth control —also Id., 35-36. implanting. uterine wall and egg reaching ized from standing challenge constitutionality. its Accord, 851 F. 1075-1076. 2d, at
To the extent that the statute interferes con- Missouri with traceptive I choices, have no is doubt that it unconstitutional holdings Connecticut, under the Court’s in Griswold v. (1965); (1972); Baird, Eisenstadt U. v. S. 438 Carey Population v. International, Services 431 U. S. place 678 defining Griswold the mosaic of decisions liberty accurately
a woman’s interest was stated concurring opinion Stewart in his Wade, Justice in Roe v. (1973): U. 167-170 S.
“[I]n Connecticut, Griswold 381 U. S. the Court held Connecticut birth control law unconstitutional. recently [Ferguson In view of what had been so said in Skrupa, (1963),] v.] [372 opinion U. S. 726 the Court’s understandably Griswold its did best to avoid reliance on the Due Process Clause of the Fourteenth Amendment ground Yet, decision. the Connecticut law any provision Rights, did not violate of the Bill of nor any specific provision other of the Constitution. So it equally then, was clear to me it clear now, to me rationally that the Griswold can decision be understood only holding as a that the Connecticut statute substan- tively ‘liberty’ protected by invaded that is Due Process Clause the Fourteenth Amendment. As so long pre- understood, Griswold stands as one line of Skrupa cases decided under doctrine of substantive process, accept I due and now it as such.
“Several decisions of this Court make clear that free personal marriage family of dom choice matters of and protected by life is one of the liberties the Due Process Loving Clause of the Fourteenth Amendment. Vir v. ginia, [(1967)]; 1, 388 12 Connecticut, Griswold v. supra; Society (1925)]; [268 Sisters, Pierce v. U. S. 510 (1923)]. Meyer [262 Nebraska, v. U. S. 390 See also
565
[(1944)];
Massachusetts,
166
158,
321 U. S.
Prince v.
[(1942)]. As
Oklahoma,
316 U. S.
v.
Skinner
recently
Baird,
v.
405 U. S.
in Eisenstadt
Term,
as last
right
[(1972)],
recognized
individ-
‘the
438, 453
we
single,
free from unwarranted
ual,
to be
married or
fundamentally
governmental
matters so
intrusion into
affecting
person
to bear or
as the decision whether
necessarily
right
right
beget
includes the
That
a child.’
to terminate her
decide whether or not
of a woman to
giv-
‘Certainly
pregnancy.
interests of a woman
during pregnancy
ing
physical
self
and emotional
of her
throughout her life
be affected
the interests that will
and
greater
raising
by
far
a child are of a
and
the birth
intimacy
significance
personal
degree
than the
protected
private
right
in Pierce
a child to
school
to send
right
Society
or the
268 U. S.
Sisters,
v.
Meyer
language protected
foreign
Ne-
teach a
(1923).’
F.
Markle, 351
Abele v.
“Clearly, correct hold- the Court therefore, ing Jane Roe is embraced that the asserted liberty protected personal Process the Due within the (Emphasis in the Fourteenth Amendment.” Clause omitted.)8 original; footnotes holding applies argue might to de- that the Griswold One conception,” “preventing is, at 480—that S., 381 U. vices implantation, preventing not to those fertilization—but protect choiceto not a woman’s that does therefore, Griswold unques- morning-after pill. There is an or take use IUD explication our Stewart’s careful between Justice The contrast proc naturally due from a stream of substantive precedent flowed abortion “con that our abortion law was Scalia’s notion cases and Justice ess Wade,” ante, part (concurring in Roe v. overnight structed judgment), is remarkable. concurring in *63 566
tionably theological argument,9 just a such an basis for unquestionably theological there was basis for the Connect- ju- icut statute that the Court invalidated Griswold. Our risprudence, consistently required however, has a secular legislation. g., Graham, basis for valid e. See, Stone v. 449 (1980) curiam).10 (per 39, U. S. 40 I am Because not aware any differentiating contraceptive for secular basis between procedures immediately that are effective before those immediately that are effective after I fertilization, believe it inescapably preamble that follows to the Missouri statute progeny. is invalid under Griswold and its persuaded any Indeed, I am that absence of secular purpose legislative begins for the declarations that life at con- ception conception and that occurs fertilization makes the portion preamble relevant invalid under Establish- ment Clause of the First Amendment Federal Con- stitution. This not, conclusion not, does and could on rest happens the fact that the statement to coincide with the te- religions, Maryland, nets of certain see McGowan v. 366 (1961); U. 420, S. 442 v. McRae, Harris 448 U. S. legislators 319-320 or on the fact that the who voted may religious to enact it have been motivated consider- (1976) Washington Davis, ations, see 426 253 concurring). J., Rather, it on the rests fact that (Stevens, preamble, unequivocal religious an endorsement of tenet of some but no means all faiths,11 Christian serves no iden- 9 “sanctity conception Several amici that state of human life from opposition are, fact, deeply religious abortion held sincere be liefs,” Synod Brief for Lutheran as Amici Chureh-Missouri et al. Curiae (on denominations”); behalf of Holy “church see Brief Orthodox Church as Amicus Curiae 12-14. rather, dispute proposition; argued
10 Thedissent Stone did not this it posting the Ten on walls has a Commandments schoolroom secular purpose. S., dissenting). at 43-46 (Rehnquist, J., U. 11See, g., e. Brief for Catholics for a Free Choice et al. as Amici Curiae (“There is no teaching theology constant on Catholic the commence personhood”). ment of *64 compels purpose. That fact alone a conclusion secular
tifiable the Establishment Clause.12 Wal- that the statute violates (1985). 38, 56 lace v. 472 U. S. Jaffree, explained by posi- My reference to concern can best be by widely accepted leaders tion on this issue that was many years. position for The of the Roman Catholic Church Teaching report, in entitled “Catholic On is summarized a Congressional prepared Research Service Abortion,” part: Library Congress. It states disagreement of the unformed as over the status “The against crucial for Christian teach- the formed fetus was widely ing the soul was not It was held that on the soul. days present of the fetus 40 or 80 until the formation respectively. conception, for males and females after or ‘inanimate’ fetus of the ‘unformed’ Thus, abortion soul) (from something than true homi- was less anima, quasi-homicide. anticipatory or rather a form of cide, definitive treatment St. Thomas This view received its interpreta- Aquinas for a time the dominant and became tion the Latin Church. Thomas, for mediaeval Christendom
“For St. as gener- approximately ally, lapse 40 to 80 there is a of time— days conception and before the soul’sinfusion.... —after is not seed is deter- Thomas,
“For ‘seed what St. destroyed movement.’ What is mined sensation and seed, fetus is not man. This in abortion of the unformed analysis its most careful St. distinction received general Christendom, belief of re- It was the Thomas. among experts in about life’s onset Pointing to the lack of consensus Wade, in Roe v. medicine, theology, the Court philosophy, permit does not a 113, 158, that the Constitution established pregnant rights. woman’s adopt theory life that overrides State Health, Inc., Reproductive Akron Center Accord, 462 U. S. Akron if, here, doubly grave violation is as constitutional “finding” is nonsecular. only basis for the State’s example, (1545-1563), fleeted, for in the Councilof Trent penalties which restricted for homicide to abortion of an > only.” Teaching animated fetus C. Whittier, Catholic Origin Development (1981), on Abortion: Its and Later reprinted Separation in Brief for Americans United for (quoting of Church and State as Amicus 13a, Curiae 17a politicorum In octo libros 7.12, attributed to St. Thomas Aquinas). widely today they
If the views of St. Thomas were held as Ages, legislature were the Middle and if a state were to prefaced “finding” enact a statute with a that female life be- *65 gins days conception begins days 80 after and male life 40 conception, after I have no doubt that this Court would promptly particular conclude that such an endorsement of a religious tenet is violative of the Establishment Clause. my opinion
In hypothetical the difference between that preamble nothing statute and Missouri’s reflects more than a theological preamble difference in doctrine. The to the Mis- theological position souri statute endorses the that there is preserving the same secular in interest the life of a fetus dur- ing days pregnancy the first 40 or 80 as there is after via- bility indeed, after the time when the fetus has become a — “person” legal rights protected by with the Constitution.13 position To sustain that as a matter of I law, believe Missouri identifying has the burden of the secular interests that dif- days pregnancy period ferentiate the first from the im- questioned Roe, No Member of this Court has ever holding in S., 156-159, “person” U. that a fetus is not a within meaning implicitly Fourteenth Even the in Amendment. dissenters Roe endorsed holding by arguing legislatures that state should decide whether id., prohibit (Rehnquist, J., or to authorize abortions. See at 177 dis senting) (arguing that the Fourteenth Amendment did not “withdraw from power legislate respect matter”); the States the with to this Doe v. Bol (1973) ton, (White, J., dissenting jointly 410 U. S. in Doe and Roe). By question issue,” characterizing political ante, the basic as “a see (concurring part concurring judgment), at 535 Justice Scalia implicitly accepts holding. likewise this
mediately before when, or after fertilization as Griswold and related cases establish, the Constitution allows the use of contraceptive procedures prevent potential life from devel- oping personhood. Focusing into full our attention on the pregnancy especially appropriate first several weeks of be- period majority cause that is the when the vast of abortions actually performed. are
As a secular matter, there is an obvious difference between protecting freshly egg the state interest in fertilized protecting 9-month-gestated, fully the state interest sen- tient fetus on the eve of birth. There can be no interest protecting newly egg physical pain fertilized from anguish, capacity suffering mental because the for such does yet respecting developed not exist; fetus, however, that in- prescinds theological terest is valid. In if fact, one con- cept accepts Aquinas’ of ensoulment—or one St. Thomas view days that ensoulment does not occur for at least 40 State—a greater protecting potential has no secular interest in life embryo protecting poten- of an that is still than in “seed” sperm tial life of a or an unfertilized ovum. history military have
There been times when and eco- nomic interests would have been served an increase in population. argues today, No one however, that Missouri *66 increasing population can a assert societal interest in its as its fostering potential secular reason for Indeed, life. our na- policy, legislation upheld tional as reflected in the Court last prevent potential produced by Term, is to life that is “pregnancy among and childbirth unmarried adolescents.” (1988); Kendrick, Bowen v. 487 accord, id., U. S. 593 analysis at 602. If the secular were based on a strict balanc- ing of fiscal costs and the economic benefits, costs of unlim- childbearing outweigh ited would those of abortion. There important unquestionably is, course, of an valid secu- “protecting young pregnant in lar interest a woman from consequences decision,” of an incorrect Planned Parent- (1976) hood Central Mo. v. 428 Danforth, 102 of in in and dissenting part). (Stevens, J., concurring part that a requirement interest is served Although circumstances, in and, receive medical appropriate woman the state legislature’s it does not advice,14 justify parental, in tenet embodied theological endorsement of the official §§1.205.1(1), preamble “finding” suggestion in the that the
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Bolstering my the preamble violates the First Amendment is the fact that the intensely divisive char- acter of much of the national debate over the abortion issue reflects the held deeply convictions of religious many partici- in pants the debate.16 The Missouri not in- Legislature may ject its endorsement of a particular tradition into religious this debate, Establishment “[t]he Clause does not allow bodies public to foment such See County disagreement.” v. American Allegheny Union, Civil Liberties Greater Pittsburgh Chapter, post, at 651 J., concurring (Stevens, part dissenting part).
In my opinion preamble to the Missouri statute is un- constitutional for two reasons. To the extent that it has sub- stantive on impact the freedom to use contraceptive proce- dures, it is inconsistent with the central holding Griswold. To the extent that it merely makes “legislative with- findings out operative effect,” as the State Brief for argues, Appel- lants it violates the Establishment Clause of the First examples The other cited the State are providing statutes that tin- born children are to though be treated as born within the lifetime of the decedent, see Uniform Probate Code 2-108 imposing statutes criminal sanctions in the nature of manslaughter killing for the of a viable g., e. Ark. Stat. Ann. quick child, see, fetus or unborn §41-2223 any None of the cited “finding” theological statutes included on the ques tion begins. of when life 16No fewer religious organizations than 67 submitted their views as amici curiae on either side of this case. Amici sides, on briefs both more over, frankly controversy discuss the relation between the abortion and re g., e. ligion. generally, See Israel of America as Ami- Agudath Brief for Curiae, cus Separation Brief for Americans United for of Church and State Curiae, et al. as Amici Brief for Catholics for a Free Choice as Amici al. et Curiae, Curiae, Orthodox Church as Amicus Holy Brief for Brief for Lu Curiae, et al. as Amici Synod theran Church-Missouri Brief for Missouri Catholic Conference as Amicus Curiae. Cf. Burke, Religion and Politics States, in the United Movements and Religions Issues World (C. 1987). Spiegler 254-256 Fu & eds. G. *68 Contrary theological “finding” Amendment. to the Legislature, constitutionally protected Missouri a woman’s liberty encompasses right the to act on her own belief that— paraphrase Aquinas acquired St. Thomas a seed has —until powers of sensation movement, the life of a human being yet begun.17 has not 17 “Justas right speak right and the to refrain speaking from are complementary components concept of a broader of individual freedom of
mind, so also the individual’s freedom to choose his own creed is the coun terpart right of his accepting refrain from the creed established majority. At one thought time it was right merely proscribed that this preference another, of one Christian sect over but require equal would not respect infidel, atheist, for the conscience of the or the adherent of a non-Christian faith such as Islam or Judaism. But underlying when the principle has been litigation, examined the crucible of the Court has un ambiguously concluded that the individual freedom protected of conscience by the First any Amendment embraces religious to select faith or none at all. This support only conclusion derives not from the interest respecting conscience, the individual’s freedom of but also from the convic religious tion that worthy respect product beliefs are the of free and vol untary faithful, choice recognition and from po the fact that the litical in forestalling interest beyond intolerance extends among intolerance — Christian sects or among ‘religions’ even intolerance encompass intol —to erance the disbeliever and the uncertain. As Justice eloquently Jackson Barnette, Virginia stated West Board Education v. 319 U. S. (1943): “ any ‘If there is fixed star in constellation, our constitutional it is that no official, high petty, prescribe can what be politics, shall orthodox in na- tionalism, religion, opinion or other matters of or force citizens to confess by word or act their faith therein.’ ,
“The ... Congress States, State no less than the of the United must re- (1985) spect Jaffree, that basic truth.” Wallace v. 472 U. S. 52-55 (footnotes omitted).