U.S. Supreme Court
PLANNED PARENTHOOD ASSN. v. ASHCROFT, 462 U.S. 476 (1983)
462 U.S. 476
PLANNED PARENTHOOD ASSOCIATION OF KANSAS CITY, MISSOURI, INC.,
ET AL. v.
ASHCROFT, ATTORNEY GENERAL OF MISSOURI, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Argued November 30, 1982
Decided June 15, 1983*
Missouri statutes require abortions after 12 weeks of pregnancy to be
performed in a hospital ( 188.025); require a pathology report for each abortion
performed ( 188.047); require the presence of a second physician during
abortions performed after viability ( 188.030.3); and require minors to secure
parental consent or consent from the Juvenile Court for an abortion ( 188.028).
In an action challenging the constitutionality of these provisions, the District
Court invalidated all provisions except 188.047. The Court of Appeals reversed
as to 188.028 and 188.047 but affirmed as to 188.030.3 and 188.025.
Section 188.025 is unconstitutional, but 188.047, 188.030.3, and 188.028 are
664 F.2d 687, affirmed in part, reversed in part, vacated in part, and
JUSTICE POWELL delivered the opinion of the Court with respect to Parts I
and II, concluding that the second-trimester hospitalization requirement of
188.025 "unreasonably infringes upon a woman's constitutional right to
obtain an abortion." Akron v. Akron Center of Reproductive Health, Inc.,
ante, at 439. Pp. 481-482.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, concluded in Parts III, IV,
and V that:
1. The second-physician requirement of 188.030.3 is constitutional as
reasonably furthering the State's compelling interest in protecting the
lives of viable fetuses. Pp. 482-486.
2. The pathology-report requirement of 188.047 is constitutional. On its
face and in effect, such requirement is reasonably related to generally
accepted medical standards and furthers important health-related state
concerns. In light of the substantial benefits that a pathologist's
examination can have, the small additional cost of such an examination does
not significantly burden a pregnant woman's abortion decision. Pp. 486-490.
[462 U.S. 476, 477]
3. Section 188.028 is constitutional. A State's interest in
protecting immature minors will sustain a requirement of a consent
substitute, either parental or judicial. And as interpreted by the Court of
Appeals to mean that the Juvenile Court cannot deny a minor's application
for consent to an abortion "for good cause" unless the court first finds
that the minor was not mature enough to make her own decision, 188.028
provides a judicial alternative that is consistent with established legal
standards. See Akron v. Akron Center for Reproductive Health, Inc., ante, at
439-440. Pp. 490-493.
JUSTICE O'CONNOR, joined by JUSTICE WHITE and JUSTICE REHNQUIST, concluded
1. The second-physician requirement of 188.030.3 is constitutional because
the State has a compelling interest, extant throughout pregnancy, in
protecting and preserving fetal life. P. 505.
2. The pathology-report requirement of 188.047 is constitutional because it
imposes no undue burden on the limited right to undergo an abortion, and its
validity is not contingent on the trimester of pregnancy in which it is
imposed. P. 505.
3. Assuming, arguendo, that the State cannot impose a parental veto on a
minor's decision to undergo an abortion, the parental consent provision of
188.028.2 is constitutional because it imposes no undue burden on any right
that a minor may have to undergo an abortion. P. 505.
POWELL, J., announced the judgment of the Court in Part VI and delivered the
opinion of the Court with respect to Parts I and II, in which BURGER, C. J., and
BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with
respect to Parts III, IV, and V, in which BURGER, C. J., joined. BLACKMUN, J.,
filed an opinion concurring in part and dissenting in part, in which BRENNAN,
MARSHALL, and STEVENS, JJ., joined, post, p. 494. O'CONNOR, J., filed an opinion
concurring in the judgment in part and dissenting in part, in which WHITE and
REHNQUIST, JJ., joined, post, p. 505.
[Footnote *] Together with No. 81-1623,
Ashcroft, Attorney General of Missouri, et al. v. Planned Parenthood Association
of Kansas City, Missouri, Inc., et al., also on certiorari to the same court.
Frank Susman argued the cause and filed briefs for petitioners in No. 81-1255
and respondents in No. 81-1623.
John Ashcroft, Attorney General of Missouri, pro se, argued the cause for
respondents in No. 81-1255 and petitioners in No. 81-1623. With him on the
briefs was Michael L. Boicourt, Assistant Attorney General.Fn
Fn [462 U.S. 476, 477] Dennis J. Horan,
Victor G. Rosenblum, Patrick A. Trueman, and Thomas J. Marzen filed a brief for
Americans United for Life as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Sylvia A. Law, Nadine
Taub, and Ellen J. Winner for the Committee for Abortion Rights
[462 U.S. 476, 478] and Against Sterilization Abuse et al.; and by James
Bopp, Jr., for the National Right to Life Committee, Inc.
Briefs of amici curiae were filed by Solicitor General Lee, Assistant
Attorney General McGrath, and Deputy Solicitor General Geller for the United
States; by Alan Ernest for the Legal Defense Fund for Unborn Children; by Judith
Levin for the National Abortion Federation; by Phyllis N. Segal, Judith I.
Avner, and Jemera Rone for the National Organization for Women; by Eve W. Paul
and Dara Klassel for the Planned Parenthood Federation of America, Inc., et al.;
by Nancy Reardan for Women Lawyers of Sacramento et al.; and by Susan Frelich
Appleton and Paul Brest for Professor Richard L. Abel et al. [462 U.S. 476, 478]
JUSTICE POWELL announced the judgment of the Court in Part VI and delivered
the opinion of the Court with respect to Parts I and II and an opinion with
respect to Parts III, IV, and V, in which THE CHIEF JUSTICE joins.
These cases, like City of Akron v. Akron Center for Reproductive Health,
Inc., ante, p. 416, and Simopoulos v. Virginia, post, p. 506, present questions
as to the validity of state statutes or local ordinances regulating the
performance of abortions.
Planned Parenthood Association of Kansas City, Missouri, Inc.,
two physicians who perform abortions, and an abortion clinic (plaintiffs) filed
a complaint in the District Court for the Western District of Missouri
challenging, as unconstitutional, several sections of the Missouri statutes
regulating the performance of abortions. The sections relevant here include Mo.
Rev. Stat. 188.025 (Supp. 1982), requiring that abortions after 12 weeks of
pregnancy be performed in a hospital;1 188.047, requiring a pathology report for each abortion
performed;2 188.030.3, requiring the presence of a second
[462 U.S. 476, 479] physician during abortions performed after viability;3 and 188.028, requiring minors to secure parental or judicial
consent.4 [462 U.S. 476, 480]
After hearing testimony from a number of expert witnesses, the District Court
invalidated all of these sections except the pathology requirement. 483 F. Supp.
679, 699-701 (1980).5 The Court of Appeals for the Eighth Circuit
[462 U.S. 476, 481] reversed the District Court's judgment with respect
to 188.028, thereby upholding the requirement that a minor secure parental or
judicial consent to an abortion. It also held that the District Court erred in
sustaining 188.047, the pathology requirement. The District Court's judgment
with respect to the second-physician requirement was affirmed, and the case was
remanded for further proceedings and findings relating to the second-trimester
hospitalization requirement. 655 F.2d 848, 872-873 (1981). On remand, the
District Court adhered to its holding that the second-trimester hospitalization
requirement was unconstitutional. The Court of Appeals affirmed this judgment.
664 F.2d 687, 691 (1981). We granted certiorari. 456 U.S. 988 (1982).
The Court today in City of Akron, ante, at 426-431, has stated fully the
principles that govern judicial review of state statutes regulating abortions,
and these need not be repeated here. With these principles in mind, we turn to
the statutes at issue.
In City of Akron, we invalidated a city ordinance requiring
physicians to perform all second-trimester abortions at general or special
hospitals accredited by the Joint Commission on Accreditation of Hospitals
(JCAH) or by the American Osteopathic Association. Ante, at 431-432. Missouri's
hospitalization requirements are similar to those enacted by Akron, as all
second-trimester abortions must be performed in general, acute-care facilities.6 For the reasons stated in City of
[462 U.S. 476, 482] Akron, we held that such a requirement "unreasonably
infringes upon a woman's constitutional right to obtain an abortion." Ante, at
439. For the same reasons, we affirm the Court of Appeals' judgment that 188.025
We turn now to the State's second-physician requirement. In
Roe v. Wade, 410 U.S. 113 (1973), the Court recognized that the State has a
compelling interest in the life of a viable fetus: "[T]he State in promoting its
interest in the potentiality of human life may, if it chooses, regulate, and
even proscribe, abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother." Id., at
164-165. See Colautti v. Franklin, 439 U.S. 379, 386-387 (1979); Beal v. Doe,
432 U.S. 438, 445-446 (1977). Several of the Missouri statutes undertake such
regulation. Postviability abortions are proscribed except when necessary to
preserve the life or the health of the woman. Mo. Rev. Stat. 188.030.1 (Supp.
1982). The [462 U.S. 476, 483] State also forbids the use of
abortion procedures fatal to the viable fetus unless alternative procedures pose
a greater risk to the health of the woman. 188.030.2.
The statutory provision at issue in this case requires the attendance of a
second physician at the abortion of a viable fetus. 188.030.3. This section
requires that the second physician "take all reasonable steps in keeping with
good medical practice . . . to preserve the life and health of the viable unborn
child; provided that it does not pose an increased risk to the life or health of
the woman." See n. 3, supra. It also provides that the second physician "shall
take control of and provide immediate medical care for a child born as a result
of the abortion."
The lower courts invalidated 188.030.3.7 The plaintiffs, respondents here on this issue, urge affirmance
on the [462 U.S. 476, 484] grounds that
the second-physician requirement distorts the traditional doctor-patient
relationship, and is both impractical and costly. They note that Missouri does
not require two [462 U.S. 476, 485]
physicians in attendance for any other medical or surgical procedure, including
childbirth or delivery of a premature infant.
The first physician's primary concern will be the life and health of the
woman. Many third-trimester abortions in Missouri will be emergency operations,8 as the State permits these late abortions only when they are
necessary to preserve the life or the health of the woman. It is not
unreasonable for the State to assume that during the operation the first
physician's attention and skills will be directed to preserving the woman's
health, and not to protecting the actual life of those fetuses who survive the
abortion procedure. Viable fetuses will be in immediate and grave danger because
of their premature birth. A second physician, in situations where Missouri
permits third-trimester abortions, may be of assistance to the woman's physician
in preserving the health and life of the child.
By giving immediate medical attention to a fetus that is delivered alive, the
second physician will assure that the State's interests are protected more fully
than the first physician alone would be able to do. And given the compelling
interest that the State has in preserving life, we cannot say that the Missouri
requirement of a second physician in those unusual
[462 U.S. 476, 486] circumstances where Missouri permits a
third-trimester abortion is unconstitutional. Preserving the life of a viable
fetus that is aborted may not often be possible,9 but the State legitimately may choose to provide safeguards for
the comparatively few instances of live birth that occur. We believe the
second-physician requirement reasonably furthers the State's compelling interest
in protecting the lives of viable fetuses, and we reverse the judgment of the
Court of Appeals holding that 188.030.3 is unconstitutional.
In regulating hospital services within the State, Missouri
requires that "[a]ll tissue surgically removed with the exception of such tissue
as tonsils, adenoids, hernial sacs and prepuces, shall be examined by a
pathologist, either on the premises or by arrangement outside of the hospital."
13 Mo. Admin. Code 50-20.030(3)(A)7 (1977). With respect to abortions, whether
performed in hospitals or in some other facility, 188.047 requires the
pathologist to "file a copy of the tissue report with the state division of
health . . . ." See n. 2, supra. The pathologist also is required to "provide a
copy of the report to the abortion facility or hospital in which the abortion
was performed or induced." Thus, Missouri appears to require that tissue
following abortions, as well as from almost all other surgery performed in
hospitals, must be submitted to a pathologist, not merely examined by the
performing doctor. The narrow question before us is whether the State lawfully
also may require the tissue removed following
[462 U.S. 476, 487]
abortions performed in clinics as well as in hospitals to be submitted to a
On its face and in effect, 188.047 is reasonably related to generally
accepted medical standards and "further[s] important health-related state
concerns." City of Akron, ante, at 430. As the Court of Appeals recognized,
pathology examinations are clearly "useful and even necessary in some cases,"
because "abnormalities in the tissue may warn of serious, possibly fatal
disorders." 655 F.2d, at 870.10 As a rule, it is accepted medical practice
to submit all tissue to the examination of a pathologist.11
This is particularly important following abortion, because questions remain as
to the long-range [462 U.S. 476, 488]
complications and their effect on subsequent pregnancies. See App. 72-73
(testimony of Dr. Willard Cates, Jr.); Levin, Schoenbaum, Monson, Stubblefield,
& Ryan, Association of Induced Abortion with Subsequent Pregnancy Loss, 243 J.
A. M. A. 2495, 2499 (1980). Recorded pathology reports, in concert with abortion
complication reports, provide a statistical basis for studying those
complications. Cf. Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52, 81 (1976).
Plaintiffs argue that the physician performing the abortion is as qualified
as a pathologist to make the examination. This argument disregards the fact that
Missouri requires a pathologist - not the performing physician - to examine
tissue after almost every type of surgery. Although this requirement is in a
provision relating to surgical procedures in hospitals, many of the same
procedures included within the Missouri statute customarily are performed also
in outpatient clinics. No reason has been suggested why the prudence required in
a hospital should not be equally appropriate in such a clinic. Indeed, there may
be good reason to impose stricter standards in this respect on clinics
performing abortions than on hospitals.12 As the testimony in the District
[462 U.S. 476, 489] Court indicates, medical opinion differs widely on
this question. See 4 Record 623; 5 Record 749-750, 798-800, 845-847; n. 11,
supra. There is substantial support for Missouri's requirement. In this case,
for example, Dr. Bernard Nathanson, a widely experienced abortion practitioner,
testified that he requires a pathologist examination after each of the 60,000
abortions performed under his direction at the New York Center for Reproductive
and Sexual Health. He considers it "absolutely necessary to obtain a
pathologist's report on each and every specimen of tissue removed from abortion
or for that matter from any other surgical procedure which involves the removal
of tissue from the human body." App. 143-144. See also id., at 146-147
(testimony of Dr. Keitges); 5 Record 798-799 (testimony of Dr. Schmidt).13
In weighing the balance between protection of a woman's health and the
comparatively small additional cost of a pathologist's examination, we cannot
say that the Constitution requires that a State subordinate its interest in
health to minimize to this extent the cost of abortions. Even in the early weeks
of pregnancy, "[c]ertain regulations that have no significant impact on the
woman's exercise of her right [to [462 U.S. 476, 490] decide to have an abortion] may be
permissible where justified by important state health objectives." City of
Akron, ante, at 430. See Danforth, supra, at 80-81. We think the cost of a
tissue examination does not significantly burden a pregnant woman's abortion
decision. The estimated cost of compliance for plaintiff Reproductive Health
Services was $19.40 per abortion performed, 483 F. Supp., at 700, n. 48, and in
light of the substantial benefits that a pathologist's examination can have,
this small cost clearly is justified. In Danforth, this Court unanimously upheld
Missouri's record-keeping requirement as "useful to the State's interest in
protecting the health of its female citizens, and [as] a resource that is
relevant to decisions involving medical experience and judgment," 428 U.S., at
We view the requirement for a pathology report as comparable and as a relatively
insignificant burden. Accordingly, we reverse the judgment of the Court of
Appeals on this issue.
As we noted in City of Akron, the relevant legal standards
with respect to parental-consent requirements are not in dispute. See ante, at
439; Bellotti v. Baird, 443 U.S. 622, 640-642, 643-644 (1979) (Bellotti II)
(plurality opinion); id., at 656-657 (WHITE, J., dissenting).15 A State's interest in [462 U.S. 476, 491] protecting immature minors
will sustain a requirement of a consent substitute, either parental or judicial.
It is clear, however, that "the State must provide an alternative procedure
whereby a pregnant minor may demonstrate that she is sufficiently mature to make
the abortion decision herself or that, despite her immaturity, an abortion would
be in her best interests."16 City of Akron, ante, at 439-440.17 The issue here is one purely of statutory construction:
whether Missouri [462 U.S. 476, 492]
provides a judicial alternative that is consistent with these established legal
The Missouri statute, 188.028.2,19 in relevant part, provides:
"(4) In the decree, the court shall for good cause:
"(a) Grant the petition for majority rights for the purpose of consenting
to the abortion; or
"(b) Find the abortion to be in the best interests of the minor and give
judicial consent to the abortion, setting forth the grounds for so finding;
"(c) Deny the petition, setting forth the grounds on which the petition is
On its face, 188.028.2(4) authorizes Juvenile Courts20 to choose among any of the alternatives outlined in the
section. [462 U.S. 476, 493] The Court of
Appeals concluded that a denial of the petition permitted in subsection (c)
"would initially require the court to find that the minor was not emancipated
and was not mature enough to make her own decision and that an abortion was not
in her best interests." 655 F.2d, at 858. Plaintiffs contend that this
interpretation is unreasonable. We do not agree.
Where fairly possible, courts should construe a statute to avoid a danger of
unconstitutionality. The Court of Appeals was aware, if the statute provides
discretion to deny permission to a minor for any "good cause," that arguably it
would violate the principles that this Court has set forth. Ibid. It recognized,
however, that before exercising any option, the Juvenile Court must receive
evidence on "the emotional development, maturity, intellect and understanding of
the minor." Mo. Rev. Stat. 188.028.2(3) (Supp. 1982). The court then reached the
logical conclusion that "findings and the ultimate denial of the petition must
be supported by a showing of `good cause.'" 655 F.2d, at 858. The Court of
Appeals reasonably found that a court could not deny a petition "for good cause"
unless it first found - after having received the required evidence - that the
minor was not mature enough to make her own decision. See Bellotti II, 443 U.S.,
at 643-644, 647-648 (plurality opinion). We conclude that the Court of Appeals
correctly interpreted the statute and that 188.028, as interpreted, avoids any
constitutional infirmities.21 [462 U.S. 476, 494]
The judgment of the Court of Appeals, insofar as it
invalidated Missouri's second-trimester hospitalization requirement and upheld
the State's parental- and judicial-consent provision, is affirmed. The judgment
invalidating the requirement of a pathology report for all abortions and the
requirement that a second physician attend the abortion of any viable fetus is
reversed. We vacate the judgment upholding an award of attorney's fees for all
hours expended by plaintiffs' attorneys and remand for proceedings consistent
with Hensley v. Eckerhart, 461 U.S. 424 (1983).
It is so ordered.
[Footnote 1] Missouri Rev. Stat. 188.025
(Supp. 1982) provides: "Every abortion performed subsequent to the first twelve
weeks of pregnancy shall be performed in a hospital."
[Footnote 2] Missouri Rev. Stat. 188.047
(Supp. 1982) provides:
"A representative sample of tissue removed at the time of abortion shall be
submitted to a board eligible or certified pathologist, who shall file a [462 U.S. 476, 479] copy of the tissue report with the
state division of health, and who shall provide a copy of the report to the
abortion facility or hospital in which the abortion was performed or induced
and the pathologist's report shall be made a part of the patient's permanent
[Footnote 3] Missouri Rev. Stat. 188.030.3
(Supp. 1982) provides:
"An abortion of a viable unborn child shall be performed or induced only
when there is in attendance a physician other than the physician performing
or inducing the abortion who shall take control of and provide immediate
medical care for a child born as a result of the abortion. During the
performance of the abortion, the physician performing it, and subsequent to
the abortion, the physician required by this section to be in attendance,
shall take all reasonable steps in keeping with good medical practice,
consistent with the procedure used, to preserve the life and health of the
viable unborn child; provided that it does not pose an increased risk to the
life or health of the woman."
[Footnote 4] Missouri Rev. Stat. 188.028
(Supp. 1982) provides:
"1. No person shall knowingly perform an abortion upon a pregnant woman
under the age of eighteen years unless:
"(1) The attending physician has secured the informed written consent of
the minor and one parent or guardian; or
"(2) The minor is emancipated and the attending physician has received the
informed written consent of the minor; or
"(3) The minor has been granted the right to self-consent to the abortion
by court order pursuant to subsection 2 of this section, and the attending
physician has received the informed written consent of the minor; or
"(4) The minor has been granted consent to the abortion by court order, and
the court has given its informed written consent in accordance with
subsection 2 of this section, and the minor is having the abortion
willingly, in compliance with subsection 3 of this section.
"2. The right of a minor to self-consent to an abortion under subdivision
(3) of subsection 1 of this section or court consent under subdivision (4)
of subsection 1 of this section may be granted by a court pursuant to the
"(1) The minor or next friend shall make an application to the juvenile
court which shall assist the minor or next friend in preparing the petition
and notices required pursuant to this section. The minor or the next friend
of the minor shall thereafter file a petition setting forth the initials of
the minor; the age of the minor; the names and addresses of each parent,
[462 U.S. 476, 480]
guardian, or, if the minor's parents are deceased and no guardian has been
appointed, any other person standing in loco parentis of the minor; that the
minor has been fully informed of the risks and consequences of the abortion;
that the minor is of sound mind and has sufficient intellectual capacity to
consent to the abortion; that, if the court does not grant the minor
majority rights for the purpose of consent to the abortion, the court should
find that the abortion is in the best interest of the minor and give
judicial consent to the abortion; that the court should appoint a guardian
ad litem of the child; and if the minor does not have private counsel, that
the court should appoint counsel. The petition shall be signed by the minor
or the next friend;
. . . . .
"(3) A hearing on the merits of the petition, to be held on the record,
shall be held as soon as possible within five days of the filing of the
petition. . . . At the hearing, the court shall hear evidence relating to
the emotional development, maturity, intellect and understanding of the
minor; the nature, possible consequences, and alternatives to the abortion;
and any other evidence that the court may find useful in determining whether
the minor should be granted majority rights for the purpose of consenting to
the abortion or whether the abortion is in the best interests of the minor;
"(4) In the decree, the court shall for good cause:
"(a) Grant the petition for majority rights for the purpose of consenting
to the abortion; or
"(b) Find the abortion to be in the best interests of the minor and give
judicial consent to the abortion, setting forth the grounds for so finding;
"(c) Deny the petition, setting forth the grounds on which the petition is
. . . . .
"3. If a minor desires an abortion, then she shall be orally informed of
and, if possible, sign the written consent required by section 188.039 in
the same manner as an adult person. No abortion shall be performed on any
minor against her will, except that an abortion may be performed against the
will of a minor pursuant to a court described in subdivision (4) of
subsection 1 of this section that the abortion is necessary to preserve the
life of the minor."
[Footnote 5] The District Court also
awarded attorney's fees for all hours claimed by the plaintiffs' attorneys. The
Court of Appeals affirmed this allocation of [462 U.S. 476, 481] fees. See 655 F.2d 848, 872 (CA8
1981). The petition for certiorari raises the issue whether an award of
attorney's fees, made pursuant to 42 U.S.C. 1988 (1976 ed., Supp. V), should be
proportioned to reflect the extent to which plaintiffs prevailed.
[Footnote 6] Missouri does not define the
term "hospital" in its statutory provisions regulating abortions. We therefore
must assume, as did the courts below, see 483 F. Supp. 679, 686, n. 10 (1980);
664 F.2d 687, 689-690, and nn. 3, 5, and 6 (1981), that the term has its common
meaning of a general, [462 U.S. 476, 482]
acute-care facility. Cf. Mo. Rev. Stat. 188.015(2) (Supp. 1982) (defining
"abortion facility" as "a clinic, physician's office, or any other place or
facility in which abortions are performed other than a hospital"). Section
197.020.2 (1978), part of Missouri's hospital licensing laws, reads:
"`Hospital' means a place devoted primarily to the maintenance and
operation of facilities for the diagnosis, treatment or care for not less
than twenty-four hours in any week of three or more nonrelated individuals
suffering from illness, disease, injury, deformity or other abnormal
physical conditions; or a place devoted primarily to provide for not less
than twenty-four hours in any week medical . . . care for three or more
nonrelated individuals. . . ."
Cf. Mo. Rev. Stat. 197.200(1) (1978) (defining "ambulatory surgical center"
to include facilities "with an organized medical staff of physicians" and "with
continuous physician services and registered professional nursing services
whenever a patient is in the facility"); 13 Mo. Admin. Code 50-30.010(1)(A)
(1977) (same). The regulations for the Department of Social Services establish
standards for the construction, physical facilities, and administration of
hospitals. 50-20.010 to 50-20.030. These are not unlike those set by JCAH. See
City of Akron, ante, at 432, and n. 16.
[Footnote 7] The courts below found, and
JUSTICE BLACKMUN'S partial dissenting opinion agrees, post, at 499-500, that
there is no possible justification for a second-physician requirement whenever
D&E is used because no viable fetus can survive a D&E procedure. 483 F. Supp.,
at 694; 655 F.2d, at 865. Accordingly, for them, 188.030.3 is overbroad. This
reasoning rests on two assumptions. First, a fetus cannot survive a D&E
abortion, and second, D&E is the method of choice in the third trimester. There
is general agreement as to the first proposition, but not as to the second.
Indeed, almost all of the authorities disagree with JUSTICE BLACKMUN'S critical
assumption, and as the Court of Appeals noted, the choice of this procedure
after viability is subject to the requirements of 188.030.2. See id., at 865,
and n. 28. Nevertheless, the courts below, in conclusory language, found that
D&E is the "method of choice even after viability is possible." Id., at 865. No
scholarly writing supporting this view is cited by those courts or by the
partial dissent. Reliance apparently is placed solely on the testimony of Dr.
Robert Crist, a physician from Kansas, to whom the District Court referred in a
footnote. 483 F. Supp., at 694, n. 25. This testimony provides slim support for
this holding. Dr. Crist's testimony, if nothing else, is remarkable in its
candor. He is a member of the National Abortion Federation, "an organization of
abortion providers and people interested in the pro-choice movement." 3 Record
415-416. He supported the use of D&E on 28-week pregnancies, well into the third
trimester. In some circumstances, he considered it a better procedure than other
methods. See id., at 427-428. His disinterest in protecting fetal life is
evidenced by his [462 U.S. 476, 484] agreement "that the abortion patient
has a right not only to be rid of the growth, called a fetus in her body, but
also has a right to a dead fetus." Id., at 431. He also agreed that he "[n]ever
ha[s] any intention of trying to protect the fetus, if it can be saved," ibid.,
and finally that "as a general principle" "[t]here should not be a live fetus,"
id., at 435. Moreover, contrary to every other view, he thought a fetus could
survive a D&E abortion. Id., at 433-434. None of the other physicians who
testified at the trial, those called both by the plaintiffs and defendants,
considered that any use of D&E after viability was indicated. See 2 Record 21
(limiting use of D&E to under 18 weeks); 3 Record 381, 410-413 (Dr. Robert
Kretzschmar) (D&E up to 17 weeks; would never perform D&E after 26 weeks); 5
Record 787 (almost "inconceivable" to use D&E after viability); 7 Record 52 (D&E
safest up to 18 weeks); id., at 110 (doctor not performing D&E past 20 weeks);
id., at 111 (risks of doing outpatient D&E equivalent to childbirth at 24
weeks). See also 8 Record 33, 78-81 (deposition of Dr. Willard Cates) (16 weeks
latest D&E performed). Apparently Dr. Crist performed abortions only in Kansas,
3 Record 334, 368, 428, a State having no statutes comparable to 188.030.1 and
188.030.2. It is not clear whether he was operating under or familiar with the
limitations imposed by Missouri law. Nor did he explain the circumstances when
there were "contraindications" against the use of any of the procedures that
could preserve viability, or whether his conclusory opinion was limited to
emergency situations. Indeed, there is no record evidence that D&E ever will be
the method that poses the least risk to the woman in those rare situations where
there are compelling medical reasons for performing an abortion after viability.
If there were such instances, they hardly would justify invalidating 188.030.3.
In addition to citing Dr. Crist in its footnote, the District Court cited -
with no elaboration - Dr. Schmidt. His testimony, reflecting no agreement with
Dr. Crist, is enlightening. Although he conceded that the attendance of a second
physician for a D&E abortion on a viable fetus was not necessary, he considered
the point mostly theoretical, because he "simply [did] not believe that the
question of viability comes up when D&E is an elected method of abortion." 5
Record 836. When reminded of Dr. Crist's earlier testimony, he conceded the
remote possibility of third-trimester D&E abortions, but stated: "I personally
cannot conceive that as a significant practical point. It may be important
legally, but [not] from a medical standpoint . . . ." Ibid. Given that Dr.
Crist's discordant testimony [462 U.S. 476, 485]
is wholly unsupported, the State's compelling interest in protecting a viable
fetus justifies the second-physician requirement even though there may be the
rare case when a physician may think honestly that D&E is required for the
mother's health. Legislation need not accommodate every conceivable contingency.
[Footnote 8] There is no clearly expressed
exception on the face of the statute for the performance of an abortion of a
viable fetus without the second physician in attendance. There may be emergency
situations where, for example, the woman's health may be endangered by delay.
Section 188.030.3 is qualified, at least in part, by the phrase "provided that
it does not pose an increased risk to the life or health of the woman." This
clause reasonably could be construed to apply to such a situation. Cf. H. L. v.
Matheson, 450 U.S. 398, 407, n. 14 (1981) (rejecting argument that Utah statute
might apply to individuals with emergency health care needs).
[Footnote 9] See American College of
Obstetricians and Gynecologists (ACOG) Technical Bulletin No. 56, p. 4 (Dec.
1979) (as high as 7% live-birth rate for intrauterine instillation of uterotonic
agents); Stroh & Hinman, Reported Live Births Following Induced Abortion: Two
and One-Half Years' Experience in Upstate New York, 126 Am. J. Obstet. Gynecol.
83, 83-84 (1976) (26 live births following saline induced-abortions; 9 following
hysterotomy; 1 following oxtyocin-induced abortion) (1 survival out of 38 live
births); 5 Record 728 (50-62% mortality rate for fetuses 26 and 27 weeks); id.,
at 729 (25-92% mortality rate for fetuses 28 and 29 weeks); id., at 837 (50%
mortality rate at 34 weeks).
[Footnote 10] A pathological examination
is designed to assist in the detection of fatal ectopic pregnancies,
hydatidiform moles or other precancerous growths, and a variety of other
problems that can be discovered only through a pathological examination. The
general medical utility of pathological examinations is clear. See, e. g., ACOG,
Standards for Obstetric-Gynecologic Services 52 (5th ed. 1982) (1982 ACOG
Standards); National Abortion Federation (NAF) Standards 6 (1981) (compliance
with standards obligatory for NAF member facilities to remain in good standing);
Brief for American Public Health Association as Amicus Curiae, O. T. 1982, Nos.
81-185, 81-746, 81-1172, p. 29, n. 6 (supporting the NAF standards for
nonhospital abortion facilities as constituting "minimum standards").
[Footnote 11] ACOG's standards at the
time of the District Court's trial recommended that a "tissue or operative
review committee" should examine "all tissue removed at obstetric-gynecologic
operations." ACOG, Standards for Obstetric-Gynecologic Services 13 (4th ed.
1974). The current ACOG Standards also state as a general rule that, for all
surgical services performed on an ambulatory basis, "[t]issue removed should be
submitted to a pathologist for examination." 1982 ACOG Standards, at 52. JUSTICE
BLACKMUN'S partial dissent, however, relies on the recent modification of these
Standards as they apply to abortions. ACOG now provides an "exception to the
practice" of mandatory examination by a pathologist and makes such examination
for abortion tissue permissive. Ibid. Not surprisingly, this change in policy
was controversial within the College. See 5 Record 799-800. ACOG found that
"[n]o consensus exists regarding routine microscopic examination of aspirated
tissue in every case," though it recognized - on the basis of inquiries made in
29 institutions - that in a majority of them a microscopic examination is
performed in all cases. ACOG, Report of Committee on Gynecologic Practice, Item
#6.2.1 (June 27-28, 1980).
[Footnote 12] The professional views
that the plaintiffs find to support their position do not disclose whether
consideration was given to the fact that not all abortion clinics, particularly
inadequately regulated clinics, conform to ethical or generally accepted medical
standards. See Bellotti v. Baird, 443 U.S. 622, 641, n. 21 (1979) (Bellotti II)
(minors may resort to "incompetent or unethical" abortion clinics); Planned
Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 91, n. 2 (1976)
(Stewart, J., concurring). The Sun-Times of Chicago, in a series of special
reports, disclosed widespread questionable practices in abortion clinics in
Chicago, including the failure to obtain proper pathology reports. See The
Abortion Profiteers, Chicago Sun-Times 25-26 (Special Reprint 1978). It is
clear, therefore, that a State reasonably could conclude that a pathology
requirement is necessary in abortion clinics as well as in general hospitals.
In suggesting that we make from a "comfortable perspective" the judgment that
a State constitutionally can require the additional cost of a pathology
examination, JUSTICE BLACKMUN'S partial dissent suggests that we
[462 U.S. 476, 489] disregard the interests of the "woman on welfare or
the unemployed teenager." Post, at 498. But these women may be those most likely
to seek the least expensive clinic available. As the standards of medical
practice in such clinics may not be the highest, a State may conclude reasonably
that a pathologist's examination of tissue is particularly important for their
[Footnote 13] JUSTICE BLACKMUN'S partial
dissent appears to suggest that 188.047 is constitutionally infirm because it
does not require microscopic examination, post, at 496-497, but that misses the
point of the regulation. The need is for someone other than the performing
clinic to make an independent medical judgment on the tissue. See n. 12, supra;
5 Record 750 (Dr. Pierre Keitges, a pathologist). It is reasonable for the State
to assume that an independent pathologist is more likely to perform a
microscopic examination than the performing doctor. See H. Cove, Surgical
Pathology of the Endometrium 28 (1981) ("To the pathologist, abortions of any
sort are evaluated grossly and microscopically for the primary purpose of
establishing a diagnosis of intrauterine pregnancy") (emphasis added).
[Footnote 14] The Danforth Court also
noted that "[t]he added requirements for confidentiality, with the sole
exception for public health officers, and for retention for seven years, a
period not unreasonable in length, assist and persuade us in our determination
of the constitutional limits." 428 U.S., at 81. Missouri extends the identical
safeguards found reassuring in Danforth to the pathology reports at issue here.
See Mo. Rev. Stat. 188.055.2, 188.060 (Supp. 1982).
[Footnote 15] The dissenters apparently
believe that the issue here is an open one, and adhere to the views they
expressed in Bellotti II. Post, at 503-504. But those views have never been
adopted by a majority of this Court, while a majority have expressed quite
differing views. See H. L. v. Matheson, 450 U.S. 398 (1981); Bellotti II
(plurality opinion); 443 U.S., at 656-657 (WHITE, J., dissenting).
[Footnote 16] The plurality in Bellotti
II also required that the alternative to parental consent must "assure" that the
resolution of this issue "will be completed with anonymity and sufficient
expedition to provide an effective opportunity for an abortion to be obtained."
Id., at 644. Confidentiality here is assured by the statutory requirement that
allows the minor to use her initials on the petition. Mo. Rev. Stat.
188.028.2(1) (Supp. 1982). As to expedition of appeals, 188.028.2(6) provides in
"The notice of intent to appeal shall be given within twenty-four hours
from the date of issuance of the order. The record on appeal shall be
completed and the appeal shall be perfected within five days from the filing
of notice to appeal. Because time may be of the essence regarding the
performance of the abortion, the supreme court of this state shall, by court
rule, provide for expedited appellate review of cases appealed under this
We believe this section provides the framework for a constitutionally
sufficient means of expediting judicial proceedings. Immediately after the
effective date of this statutory enactment, the District Court enjoined
enforcement. No unemancipated pregnant minor has been required to comply with
this section. Thus, to this point in time, there has been no need for the State
Supreme Court to promulgate rules concerning appellate review. There is no
reason to believe that Missouri will not expedite any appeal consistent with the
mandate in our prior opinions.
[Footnote 17] Cf. H. L. v. Matheson,
supra, at 406-407, and n. 14, 411 (upholding a parental notification requirement
but not extending the holding to mature or emancipated minors or to immature
minors showing such notification detrimental to their best interests). The lower
courts found that 188.028's notice requirement was unconstitutional. 655 F.2d,
at 873; 483 F. Supp., at 701. The State has not sought review of that judgment
here. Thus, in the posture in which it appears before this Court for review,
188.028 contains no requirement for parental notification.
[Footnote 18] The Missouri statute also
exempts "emancipated" women under the age of 18 both from the requirement of
parental consent and from the alternative requirement of a judicial proceeding.
Plaintiffs argue that the word "emancipated" in this context is void for
vagueness, but we disagree. Cf. H. L. v. Matheson, supra, at 407 (using word to
describe a minor). Although the question whether a minor is emancipated turns
upon the facts and circumstances of each individual case, the Missouri courts
have adopted general rules to guide that determination, and the term is one of
general usage and understanding in the Missouri common law. See Black v. Cole,
626 S. W. 2d 397, 398 (Mo. App. 1981) (quoting 67 C. J. S., Parent and Child 86,
p. 811 (1950)); In re Marriage of Heddy, 535 S. W. 2d 276, 279 (Mo. App. 1976)
(same); Wurth v. Wurth, 313 S. W. 2d 161, 164 (Mo. App. 1958) (same), rev'd on
other grounds, 322 S. W. 2d 745 (Mo. 1959).
[Footnote 19] See n. 4, supra. This
Court in Danforth held unconstitutional Missouri's parental-consent requirement
for all unmarried minors under the age of 18. 428 U.S., at 75. In response to
our decision, Missouri enacted the section challenged here. This new statute
became effective shortly before our decision in Bellotti II.
[Footnote 20] We have indicated in prior
opinions that a minor should have access to an "independent decisionmaker." H.
L. v. Matheson, supra, at 420 (POWELL, J., concurring). Missouri has provided
for a judicial decisionmaker. We therefore need not consider whether a qualified
and independent nonjudicial decisionmaker would be appropriate. Cf. Bellotti II,
443 U.S., at 643, n. 22.
[Footnote 21] Plaintiffs also argue
that, in light of the ambiguity of 188.028.2(4), as evidenced by the differing
interpretations placed upon it, the appropriate course of judicial restraint is
abstention. This Court has found such an approach appropriate. See Bellotti v.
Baird, 428 U.S. 132, 146-147 (1976) (Bellotti I). Plaintiffs did not, however,
argue in the Court of Appeals that the court should abstain, and Missouri has no
certification procedure whereby this Court can refer questions of state
statutory construction to the State Supreme Court. See 655 F.2d, at 861, n. 20;
17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4248, p.
525, n. 29 (1978 and Supp. 1982). Such a procedure "greatly simplifie[d]" our
[462 U.S. 476, 494] analysis in Bellotti I, supra, at 151. Moreover,
where, as here, a statute is susceptible to a fair construction that obviates
the need to have the state courts render the saving construction, there is no
reason for federal courts to abstain.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE
STEVENS join, concurring in part and dissenting in part.
The Court's decision today in Akron v. Akron Center for Reproductive Health,
Inc., ante, p. 416, invalidates the city of Akron's hospitalization requirement
and a host of other provisions that infringe on a woman's decision to terminate
her pregnancy through abortion. I agree that Missouri's hospitalization
requirement is invalid under the Akron analysis, and I join Parts I and II of
JUSTICE POWELL'S opinion in the present cases. I do not agree, however, that the
remaining Missouri statutes challenged in these cases satisfy the constitutional
standards set forth in Akron and the Court's prior decisions.
Missouri law provides that whenever an abortion is performed,
a tissue sample must be submitted to a "board eligible
[462 U.S. 476, 495] or certified pathologist" for a report. Mo. Rev.
Stat. 188.047 (Supp. 1982). This requirement applies to first-trimester
abortions as well as to those performed later in pregnancy. Our past decisions
establish that the performance of abortions during the first trimester must be
left "`free of interference by the State.'" Akron, ante, at 430, quoting Roe v.
Wade, 410 U.S. 113, 163 (1973). As we have noted in Akron, this does not mean
that every regulation touching upon first-trimester abortions is
constitutionally impermissible. But to pass constitutional muster, regulations
affecting first-trimester abortions must "have no significant impact on the
woman's exercise of her right" and must be "justified by important state health
objectives." Akron, ante, at 430; see ante, at 489-490.
Missouri's requirement of a pathologist's report is not justified by
important health objectives. Although pathology examinations may be "useful and
even necessary in some cases," ante, at 487, Missouri requires more than a
pathology examination and a pathology report; it demands that the examination be
performed and the report prepared by a "board eligible or certified pathologist"
rather than by the attending physician. Contrary to JUSTICE POWELL'S assertion,
ibid., this requirement of a report by a pathologist is not in accord with
"generally accepted medical standards." The routine and accepted medical
practice is for the attending physician to perform a gross (visual) examination
of any tissue removed during an abortion. Only if the physician detects
abnormalities is there a need to send a tissue sample to a pathologist. The
American College of Obstetricians and Gynecologists (ACOG) does not recommend an
examination by a pathologist in every case:
"In the situation of elective termination of pregnancy, the attending
physician should record a description of the gross products. Unless definite
embryonic or fetal parts can be identified, the products of elective
interruptions [462 U.S. 476, 496] of pregnancy must be submitted to a
pathologist for gross and microscopic examination.
. . . . .
". . . Aspirated tissue should be examined to ensure the presence of villi
or fetal parts prior to the patient's release from the facility. If villi or
fetal parts are not identified with certainty, the tissue specimen must be
sent for further pathologic examination . . . ." ACOG, Standards for
Obstetric-Gynecologic Services 52, 54 (5th ed. 1982).1
Nor does the National Abortion Federation believe that such an examination is
"All tissue must be examined grossly at the time of the abortion procedure
by a physician or trained assistant and the results recorded in the chart.
In the absence of visible fetal parts or placenta upon gross examination,
obtained tissue may be examined under a low power microscope for the
detection of villi. If this examination is inconclusive, the tissue should
be sent to the nearest suitable pathology laboratory for microscopic
examination." National Abortion Federation Standards 6 (1981) (emphasis
As the Court of Appeals pointed out, there was expert testimony at trial that
a nonpathologist physician is as capable of performing an adequate gross
examination as is a pathologist, and that the "abnormalities which are of
concern" are [462 U.S. 476, 497] readily detectable by a
physician. 655 F.2d 848, 871, n. 37 (CA8 1981); see App. 135.2 While a pathologist may be better able to perform a
microscopic examination, Missouri law does not require a microscopic examination
unless "fetal parts or placenta are not identified." 13 Mo. Admin. Code
50-151.030(1) (1981). Thus, the effect of the Missouri statute is to require a
pathologist to perform the initial gross examination, which is normally the
responsibility of the attending physician and which will often make the
pathologist's services unnecessary.
On the record before us, I must conclude that the State has not "met its
burden of demonstrating that [the pathologist requirement] further[s] important
health-related State concerns." Akron, ante, at 430.3 There has been no showing that tissue examinations by a
pathologist do more to protect health than examinations by a nonpathologist
physician. Missouri does not require pathologists' reports for any other
surgical procedures performed in clinics, or for minor surgery performed in
hospitals. 13 Mo. Admin. Code 50-20.030(3)(A)(7) (1977). Moreover, I cannot
agree with JUSTICE POWELL that Missouri's pathologist requirement has "no
significant impact" ante, at 489, on a woman's exercise of her right to an
abortion. It is undisputed that this requirement may increase the cost of a
first-trimester abortion by as much as $40. See 483 F. Supp. 679, 700, n. 48 (WD
Mo. 1980). Although this increase may seem insignificant from the Court's
comfortable perspective, I cannot say that it is equally insignificant to every
woman seeking an abortion. [462 U.S. 476, 498]
For the woman on welfare or the unemployed teenager, this additional cost may
well put the price of an abortion beyond reach.4 Cf. Harper v. Virginia Board of Elections, 383 U.S. 663, 668
(1966) ($1.50 poll tax "excludes those unable to pay"); Burns v. Ohio, 360 U.S.
252, 255, 257 (1959) ($20 docket fee "foreclose[s] access" to appellate review
In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 81
(1976), the Court warned that the minor recordkeeping requirements upheld in
that case "perhaps approach[ed] impermissible limits." Today in Akron, we have
struck down restrictions on first-trimester abortions that "may in some cases
add to the cost of providing abortions." Ante, at 447-448; see ante, at 449-451.
Missouri's requirement of a pathologist's report unquestionably adds
significantly to the cost of providing abortions, and Missouri has not shown
that it serves any substantial health-related purpose. Under these
circumstances, I would hold that constitutional limits have been exceeded.
In Missouri, an abortion may be performed after viability only
if necessary to preserve the life or health of the woman. Mo. Rev. Stat.
188.030.1 (Supp. 1982). When a postviability abortion is performed, Missouri law
provides that "there [must be] in attendance a [second] physician . . . who
[462 U.S. 476, 499] shall take control of and provide immediate medical
care for a child born as a result of the abortion." Mo. Rev. Stat. 188.030.3
(Supp. 1982). The Court recognized in Roe v. Wade, 410 U.S., at 164-165, that a
State's interests in preserving maternal health and protecting the potentiality
of human life may justify regulation and even prohibition of postviability
abortions, except those necessary to preserve the life and health of the mother.
But regulations governing postviability abortions, like those at any other stage
of pregnancy, must be "tailored to the recognized state interests." Id., at 165;
see H. L. v. Matheson, 450 U.S. 398, 413 (1981) ("statute plainly serves
important state interests"); Roe, 410 U.S., at 155 ("legislative enactments must
be narrowly drawn to express only the legitimate state interests at stake").
The second-physician requirement is upheld in these cases on
the basis that it "reasonably furthers the State's compelling interest in
protecting the lives of viable fetuses." Ante, at 486. While I agree that a
second physician indeed may aid in preserving the life of a fetus born alive,
this type of aid is possible only when the abortion method used is one that may
result in a live birth. Although Missouri ordinarily requires a physician
performing a postviability abortion to use the abortion method most likely to
preserve fetal life, this restriction does not apply when this method "would
present a greater risk to the life and health of the woman." Mo. Rev. Stat.
188.030.2 (Supp. 1982).
The District Court found that the dilatation and evacuation (D&E) method of
abortion entails no chance of fetal survival, and that it will nevertheless be
the method of choice for some women who need postviability abortions. In some
cases, in other words, maternal health considerations will preclude the use of
procedures that might result in a live birth. 483
[462 U.S. 476, 500] F. Supp., at 694.5
When a D&E abortion is performed, the second physician can do nothing to further
the State's compelling interest in protecting potential life. His presence is
superfluous. The second-physician requirement thus is overbroad and "imposes a
burden on women in cases where the burden is not justified by any possibility of
survival of the fetus." 655 F.2d, at 865-866.
JUSTICE POWELL apparently believes that the State's interest in preserving
potential life justifies the State in requiring a second physician at all
postviability abortions because some methods other than D&E may result in live
births. But this fact cannot justify requiring a second physician to attend an
abortion at which the chance of a live birth is nonexistent. The choice of
method presumably will be made in advance,6 and any need for a second physician
disappears when [462 U.S. 476, 501] the
woman's health requires that the choice be D&E. Because the statute is not
tailored to protect the State's legitimate interests, I would hold it invalid.7
In addition, I would hold that the statute's failure to
provide a clear exception for emergency situations renders it unconstitutional.
As JUSTICE POWELL recognizes, ante, at 485, n. 8, an emergency may arise in
which delay could be dangerous to the life or health of the woman. A second
physician may not always be available in such a situation; yet the statute
appears to require one. It states, in unqualified terms, that a postviability
abortion "shall be performed . . . only when there is in attendance" a second
physician who "shall take control of" any child born as a result of the
abortion, and it imposes certain duties on "the physician required by this
section to be in attendance." Mo. Rev. Stat. 188.030.3 (Supp. 1982) (emphasis
added). By requiring the attendance of a second physician even when the
resulting delay may be harmful to the health of the pregnant woman, the statute
impermissibly fails to make clear "that the woman's life and
[462 U.S. 476, 502] health must always prevail over the fetus' life and
health when they conflict." Colautti v. Franklin, 439 U.S. 379, 400 (1979).
JUSTICE POWELL attempts to cure this defect by asserting that the final
clause of the statute, requiring the two physicians to "take all reasonable
steps . . . to preserve the life and health of the viable unborn child; provided
that it does not pose an increased risk to the life or health of the woman,"
could be construed to permit emergency postviability abortions without a second
physician. Ante, at 485, n. 8. This construction is contrary to the plain
language of the statute; the clause upon which JUSTICE POWELL relies refers to
the duties of both physicians during the performance of the abortion, but it in
no way suggests that the second physician may be dispensed with.
Moreover, since JUSTICE POWELL'S proposed construction is not binding on the
courts of Missouri,8
a physician performing an emergency postviability abortion cannot rely on it
with any degree of confidence. The statute thus remains impermissibly vague; it
fails to inform the physician whether he may proceed with a postviability
abortion in an emergency, or whether he must wait for a second physician even if
the woman's life or health will be further imperiled by the delay. This
vagueness may well have a severe chilling effect on the physician who perceives
the patient's need for a postviability abortion. In Colautti v. Franklin, we
considered a statute that failed to specify whether it "require[d] the physician
to make a `trade-off' between the woman's health and additional percentage
points of fetal survival." 439 U.S., at 400. The Court held there that "where
conflicting duties of this magnitude are involved, the State, at the least, must
proceed with greater precision before it may subject a physician to possible
[462 U.S. 476, 503] criminal sanctions." Id., at 400-401.9 I would apply that reasoning here, and hold Missouri's
second-physician requirement invalid on this ground as well.10
Missouri law prohibits the performance of an abortion on an
unemancipated minor absent parental consent or a court order. Mo. Rev. Stat.
188.028 (Supp. 1982).
Until today, the Court has never upheld "a requirement of a consent
substitute, either parental or judicial," ante, at 491. In Planned Parenthood of
Central Missouri v. Danforth, 428 U.S., at 74, the Court invalidated a
parental-consent requirement on the ground that "the State does not have the
constitutional authority to give a third party an absolute, and possibly
arbitrary, veto over the decision of the physician and his patient to terminate
the patient's pregnancy, regardless of the reason for withholding the consent."
In Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), eight Justices
[462 U.S. 476, 504]
agreed that a Massachusetts statute permitting a judicial veto of a mature
minor's decision to have an abortion was unconstitutional. See id., at 649-650
(opinion of POWELL, J.); id., at 654-656 (opinion of STEVENS, J.). Although four
Justices stated in Bellotti II that an appropriately structured judicial-consent
requirement would be constitutional, id., at 647-648 (opinion of POWELL, J.),
this statement was not necessary to the result of the case and did not command a
majority. Four other Justices concluded that any judicial-consent statute would
suffer from the same flaw the Court identified in Danforth: it would give a
third party an absolute veto over the decision of the physician and his patient.
443 U.S., at 655-656 (opinion of STEVENS, J.).
I continue to adhere to the views expressed by JUSTICE STEVENS in Bellotti
"It is inherent in the right to make the abortion decision that the right
may be exercised without public scrutiny and in defiance of the contrary
opinion of the sovereign or other third parties. . . . As a practical
matter, I would suppose that the need to commence judicial proceedings in
order to obtain a legal abortion would impose a burden at least as great as,
and probably greater than, that imposed on the minor child by the need to
obtain the consent of the parent. Moreover, once this burden is met, the
only standard provided for the judge's decision is the best interest of the
minor. That standard provides little real guidance to the judge, and his
decision must necessarily reflect personal and societal values and mores
whose enforcement upon the minor - particularly when contrary to her own
informed and reasonable decision - is fundamentally at odds with privacy
interests underlying the constitutional protection afforded to her
decision." Ibid. (footnote omitted).
Because Mo. Rev. Stat. 188.028 (Supp. 1982) permits a parental or judicial
veto of a minor's decision to obtain an abortion, I would hold it
[Footnote 1] See also ACOG, Standards
for Obstetric-Gynecologic Services 66 (1982):
"Tissue removed should be submitted to a pathologist for examination. . . .
An exception to the practice may be in elective terminations of pregnancy in
which definitive embryonic or fetal parts can be identified. In such
instances, the physician should record a description of the gross products.
Unless definite embryonic or fetal parts can be identified, the products of
elective interruptions of pregnancy must be submitted to a pathologist for
gross and microscopic examination."
[Footnote 2] The District Court made no
findings on this point, noting only that some witnesses for the State had
testified that "pathology should be done" for every abortion. 483 F. Supp. 679,
700, n. 49 (WD Mo. 1980).
[Footnote 3] JUSTICE POWELL appears to
draw support from the facts that "questionable practices" occur at some abortion
clinics, while at others "the standards of medical practice . . . may not be the
highest." Ante, at 489, n. 12. There is no evidence, however, that such
questionable practices occur in Missouri.
[Footnote 4] A $40 pathologist's fee may
increase the price of a first-trimester abortion by 20% or more. See 655 F.2d
848, 869, n. 35 (1981) (cost of first-trimester abortion at Reproductive Health
Services is $170); F. Jaffe, B. Lindheim, & P. Lee, Abortion Politics: Private
Morality and Public Policy 36 (1981) (cost of first-trimester clinic abortion
ranges from approximately $185 to $235); Henshaw, Freestanding Abortion Clinics:
Services, Structure, Fees, 14 Family Planning Perspectives 248, 255 (1982)
(average cost of first-trimester clinic abortion is $190); National Abortion
Federation Membership Directory 18-19 (1982/1983) (NAF clinics in Missouri
charge $180 to $225 for first-trimester abortion).
[Footnote 5] The District Court relied
on the testimony of Doctors Robert Crist and Richard Schmidt. Doctor Crist
testified that in some instances abortion methods other than D&E would be
"absolutely contraindicated" by the woman's health condition, 3 Record 438-439,
giving the example of a recent patient with hemolytic anemia that would have
been aggravated by the use of prostaglandins or other labor-inducing abortion
methods, id., at 428. Doctor Schmidt testified that "[t]here very well may be"
situations in which D&E would be used because other methods were
contraindicated. 5 Record 836. Although Doctor Schmidt previously had testified
that a postviability D&E abortion was "almost inconceivable," this was in
response to a question by the State's attorney regarding whether D&E would be
used "[a]bsent the possibility that there is extreme contraindication for the
use of prostaglandins or saline, or of hysterotomy." Id., at 787. Any
inconsistencies in Doctor Schmidt's testimony apparently were resolved by the
District Court in the plaintiffs' favor.
The Court of Appeals upheld the District Court's factual finding that health
reasons sometimes would require the use of D&E for postviability abortions. 655
F.2d, at 865. Absent the most exceptional circumstances, we do not review a
District Court's factual findings in which the Court of Appeals has concurred.
Branti v. Finkel, 445 U.S. 507, 512, n. 6 (1980).
[Footnote 6] In addition to requiring
the physician to select the method most likely to preserve fetal life, so long
as it presents no greater risk to the pregnant woman, Missouri requires that the
physician "certify in writing the [462 U.S. 476,
501] available method or techniques considered and the reasons for
choosing the method or technique employed." Mo. Rev. Stat. 188.030.2 (Supp.
1982). This ensures that the choice of method will be a reasoned one.
[Footnote 7] The State argues that its
second-physician requirement is justified even when D&E is used, because "[i]f
the statute specifically excepted D&E procedures, abortionists would be
encouraged to use it more frequently to avoid the expense of a second physician,
to ensure a dead fetus, to prevent the presence of a second professional to
observe malpractice or the choice of a questionable procedure from a safety
viewpoint, a fetus-destroying procedure, or to avoid their own awakening to
concern for the newborn." Brief for Petitioners in No. 81-1623, p. 44. The Court
rejected this purported justification for a second physician in Doe v. Bolton,
410 U.S. 179, 199 (1973): "If a physician is licensed by the State, he is
recognized by the State as capable of exercising acceptable clinical judgment.
If he fails in this, professional censure and deprivation of his license are
available remedies. Required acquiescence by co-practitioners has no rational
connection with a patient's needs and unduly infringes on the physician's right
[Footnote 8] "Only the [Missouri] courts
can supply the requisite construction, since of course `we lack jurisdiction
authoritatively to construe state legislation.'" Gooding v. Wilson, 405 U.S.
518, 520 (1972), quoting United States v. Thirty-seven Photographs, 402 U.S.
363, 369 (1971).
[Footnote 9] A physician who fails to
comply with Missouri's second-physician requirement faces criminal penalties and
the loss of his license. Mo. Rev. Stat. 188.065, 188.075 (1978 and Supp. 1982).
[Footnote 10] Because I would hold the
statute unconstitutional on these grounds, I do not reach the question whether
Missouri's second-physician requirement impermissibly interferes with the
doctor-patient relationship. I note, however, that Missouri does not require
attendance of a second physician at any other medical procedure, including a
premature birth. There was testimony at trial that a newborn infant, whether the
product of a normal birth or an abortion, ordinarily remains the responsibility
of the woman's physician until he turns its care over to another. App. 133; see
ACOG, Standards for Obstetric-Gynecologic Services 31 (5th ed., 1982) ("The
individual who delivers the baby is responsible for the immediate post-delivery
care of the newborn until another person assumes this duty").
This allocation of responsibility makes sense. Consultation and team-work are
fundamental in medical practice, but in an operating room a patient's life or
health may depend on split-second decisions by the physician. If responsibility
and control must be shared between two physicians with the lines of authority
unclear, precious moments may be lost to the detriment of both woman and child.
[462 U.S. 476, 505]
JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join,
concurring in the judgment in part and dissenting in part.
For reasons stated in my dissent in Akron v. Akron Center for Reproductive
Health, ante, p. 416, I believe that the second-trimester hospitalization
requirement imposed by 188.025 does not impose an undue burden on the limited
right to undergo an abortion. Assuming, arguendo, that the requirement was an
undue burden, it would nevertheless "reasonably relat[e] to the preservation and
protection of maternal health." Roe v. Wade, 410 U.S. 113, 163 (1973). I
therefore dissent from the Court's judgment that the requirement is
I agree that the second-physician requirement contained in 188.030.3 is
constitutional because the State possesses a compelling interest in protecting
and preserving fetal life, but I believe that this state interest is extant
throughout pregnancy. I therefore concur in the judgment of the Court.
I agree that the pathology-report requirement imposed by 188.047 is
constitutional because it imposes no undue burden on the limited right to
undergo an abortion. Because I do not believe that the validity of this
requirement is contingent in any way on the trimester of pregnancy in which it
is imposed, I concur in the judgment of the Court.
Assuming, arguendo, that the State cannot impose a parental veto on the
decision of a minor to undergo an abortion, I agree that the parental-consent
provision contained in 188.028 is constitutional. However, I believe that the
provision is valid because it imposes no undue burden on any right that a minor
may have to undergo an abortion. I concur in the judgment of the Court on this
I also concur in the Court's decision to vacate and remand on the issue of
attorney's fees in light of Hensley v. Eckerhart, 461 U.S. 424 (1983).
[462 U.S. 476, 506]
Copyright © 1994-1999 FindLaw Inc.
Priests for Life
PO Box 141172
Staten Island, NY 10314
Tel. 888-PFL-3448, (718) 980-4400
Subscribe to Fr. Frank's bi-weekly
prolife column (free):
Crisis Pregnancy Help || About Us
ll Support our Work
Latest News ||
|| About Other Groups
This site is updated daily!