This appeal concerns the constitutionality of a Missouri statute regulating the performance of abortions. The United States Court of Appeals for the Eighth Circuit struck down several provisions of the statute on the ground that they violated this Court's decision in Roe v. Wade, 410 U.S. 113 (1973), and cases following it. We noted probable jurisdiction, 488 U.S. 1003 (1989), and now reverse.
In June 1986, the Governor of Missouri signed into law Missouri Senate Committee Substitute for House Bill No. 1596 (hereinafter Act or statute), which amended existing state law concerning unborn children and abortions.
In July 1986, five health professionals employed by the State and two nonprofit corporations brought this class action in the United States District Court for the Western District of Missouri to challenge the constitutionality of the Missouri statute. Plaintiffs, appellees in this Court, sought declaratory and injunctive relief on the ground that certain statutory provisions violated the First, Fourth, Ninth, and Fourteenth Amendments to the Federal Constitution. App. A9. They asserted violations of various rights, including the "privacy
Plaintiffs filed this suit "on their own behalf and on behalf of the entire class consisting of facilities and Missouri licensed physicians or other health care professionals offering abortion services or pregnancy counseling and on behalf of the entire class of pregnant females seeking abortion services or pregnancy counseling within the State of Missouri." Id., at A13. The two nonprofit corporations are Reproductive Health Services, which offers family planning and gynecological services to the public, including abortion services up to 22 weeks "gestational age,"
Several weeks after the complaint was filed, the District Court temporarily restrained enforcement of several provisions of the Act. Following a 3-day trial in December 1986, the District Court declared seven provisions of the Act unconstitutional and enjoined their enforcement. 662 F.Supp. 407 (WD Mo. 1987). These provisions included the preamble, § 1.205; the "informed consent" provision, which required
The Court of Appeals for the Eighth Circuit affirmed, with one exception not relevant to this appeal. 851 F.2d 1071 (1988). The Court of Appeals determined that Missouri's declaration that life begins at conception was "simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations." Id., at 1076. Relying on Colautti v. Franklin, 439 U.S. 379, 388-389 (1979), it further held that the requirement that physicians perform viability tests was an unconstitutional legislative intrusion on a matter of medical skill and judgment. 851 F. 2d, at 1074-1075. The Court of Appeals invalidated Missouri's prohibition on the use of public facilities and employees to perform or assist abortions not necessary to save the mother's life. Id., at 1081-1083. It distinguished our decisions in Harris v. McRae, 448 U.S. 297 (1980), and Maher v. Roe, 432 U.S. 464 (1977), on the ground that " `[t]here is a fundamental difference between providing direct funding to effect the abortion decision and allowing staff physicians to perform abortions at an existing publicly owned hospital.' " 851 F. 2d, at 1081, quoting Nyberg v. City of Virginia, 667 F.2d 754, 758 (CA8 1982), appeal dism'd, 462 U.S. 1125 (1983). The Court of Appeals struck down the provision prohibiting the use of public funds for "encouraging or counseling" women to have nontherapeutic abortions, for the reason that this provision was both overly vague and inconsistent with the right to an abortion enunciated in Roe v. Wade. 851 F. 2d, at 1077-1080. The court also invalidated the hospitalization
Decision of this case requires us to address four sections of the Missouri Act: (a) the preamble; (b) the prohibition on the use of public facilities or employees to perform abortions; (c) the prohibition on public funding of abortion counseling; and (d) the requirement that physicians conduct viability tests prior to performing abortions. We address these seriatim.
The Act's preamble, as noted, sets forth "findings" by the Missouri Legislature that "[t]he life of each human being begins at conception," and that "[u]nborn children have protectable interests in life, health, and well-being." Mo. Rev. Stat. §§ 1.205.1(1), (2) (1986). The Act then mandates that state laws be interpreted to provide unborn children with "all the rights, privileges, and immunities available to other persons, citizens, and residents of this state," subject to the Constitution and this Court's precedents. § 1.205.2.
The State contends that the preamble itself is precatory and imposes no substantive restrictions on abortions, and that appellees therefore do not have standing to challenge it. Brief for Appellants 21-24. Appellees, on the other hand, insist that the preamble is an operative part of the Act intended to guide the interpretation of other provisions of the Act. Brief for Appellees 19-23. They maintain, for example, that the preamble's definition of life may prevent physicians
In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not by its terms regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U. S., at 474. The preamble can be read simply to express that sort of value judgment.
We think the extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the courts of Missouri can definitively decide. State law has offered protections to unborn children in tort and probate law, see Roe v. Wade, supra, at 161-162, and § 1.205.2 can be interpreted to do no more than that. What we have, then, is much the same situation that the Court confronted in Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945). As in that case:
It will be time enough for federal courts to address the meaning of the preamble should it be applied to restrict the activities of appellees in some concrete way. Until then, this
Section 188.210 provides that "[i]t shall be unlawful for any public employee within the scope of his employment to perform or assist an abortion, not necessary to save the life of the mother," while § 188.215 makes it "unlawful for any public facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother."
As we said earlier this Term in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196 (1989): "[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." In Maher v. Roe, supra, the Court upheld a Connecticut welfare regulation under which Medicaid recipients received payments for medical services related
Relying on Maher, the Court in Poelker v. Doe, 432 U.S. 519, 521 (1977), held that the city of St. Louis committed "no constitutional violation . . . in electing, as a policy choice, to provide publicly financed hospital services for childbirth without providing corresponding services for nontherapeutic abortions."
More recently, in Harris v. McRae, 448 U.S. 297 (1980), the Court upheld "the most restrictive version of the Hyde Amendment," id., at 325, n. 27, which withheld from States federal funds under the Medicaid program to reimburse the costs of abortions, " `except where the life of the mother would be endangered if the fetus were carried to term.' " Ibid. (quoting Pub. L. 94-439, § 209, 90 Stat. 1434). As in Maher and Poelker, the Court required only a showing that Congress' authorization of "reimbursement for medically necessary services generally, but not for certain medically necessary
The Court of Appeals distinguished these cases on the ground that "[t]o prevent access to a public facility does more than demonstrate a political choice in favor of childbirth; it clearly narrows and in some cases forecloses the availability of abortion to women." 851 F. 2d, at 1081. The court reasoned that the ban on the use of public facilities "could prevent a woman's chosen doctor from performing an abortion because of his unprivileged status at other hospitals or because a private hospital adopted a similar anti-abortion stance." Ibid. It also thought that "[s]uch a rule could increase the cost of obtaining an abortion and delay the timing of it as well." Ibid.
We think that this analysis is much like that which we rejected in Maher, Poelker, and McRae. As in those cases, the State's decision here to use public facilities and staff to encourage childbirth over abortion "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy." McRae, 448 U. S., at 315. Just as Congress' refusal to fund abortions in McRae left "an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all," id., at 317, Missouri's refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all. The challenged provisions only restrict a woman's ability to obtain an abortion to the extent that she chooses to use a physician affiliated with a public hospital. This circumstance is more easily remedied, and thus considerably less burdensome, than indigency, which "may make it difficult — and in some cases, perhaps, impossible — for some women to have abortions" without public funding. Maher, 432 U. S., at 474. Having held that the State's refusal to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use
The Court of Appeals sought to distinguish our cases on the additional ground that "[t]he evidence here showed that all of the public facility's costs in providing abortion services are recouped when the patient pays." 851 F. 2d, at 1083. Absent any expenditure of public funds, the court thought that Missouri was "expressing" more than "its preference for childbirth over abortions," but rather was creating an "obstacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest." Ibid. We disagree.
"Constitutional concerns are greatest," we said in Maher, supra, at 476, "when the State attempts to impose its will by the force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader." Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions. Brief for Appellees 46-47. Indeed, if the State does recoup all of its costs in performing abortions, and no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or employees for performing abortions.
The Missouri Act contains three provisions relating to "encouraging or counseling a woman to have an abortion not necessary to save her life." Section 188.205 states that no public funds can be used for this purpose; § 188.210 states that public employees cannot, within the scope of their employment, engage in such speech; and § 188.215 forbids such speech in public facilities. The Court of Appeals did not consider § 188.205 separately from §§ 188.210 and 188.215. It held that all three of these provisions were unconstitutionally vague, and that "the ban on using public funds, employees, and facilities to encourage or counsel a woman to have an abortion is an unacceptable infringement of the woman's fourteenth amendment right to choose an abortion after receiving
Missouri has chosen only to appeal the Court of Appeals' invalidation of the public funding provision, § 188.205. See Juris. Statement I-II. A threshold question is whether this provision reaches primary conduct, or whether it is simply an instruction to the State's fiscal officers not to allocate funds for abortion counseling. We accept, for purposes of decision, the State's claim that § 188.205 "is not directed at the conduct of any physician or health care provider, private or public," but "is directed solely at those persons responsible for expending public funds." Brief for Appellants 43.
Appellees contend that they are not "adversely" affected under the State's interpretation of § 188.205, and therefore that there is no longer a case or controversy before us on this question. Brief for Appellees 31-32. Plaintiffs are masters of their complaints and remain so at the appellate stage of a litigation. See Caterpillar Inc. v. Williams, 482 U.S. 386, 398-399 (1987). A majority of the Court agrees with appellees that the controversy over § 188.205 is now moot, because appellees' argument amounts to a decision to no longer seek a declaratory judgment that § 188.205 is unconstitutional and accompanying declarative relief. See Deakins v. Monaghan, 484 U.S. 193, 199-201 (1988); United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950). We accordingly direct the Court of Appeals to vacate the judgment of the District Court
Section 188.029 of the Missouri Act provides:
As with the preamble, the parties disagree over the meaning of this statutory provision. The State emphasizes the language of the first sentence, which speaks in terms of the physician's determination of viability being made by the standards of ordinary skill in the medical profession. Brief for Appellants 32-35. Appellees stress the language of the second sentence, which prescribes such "tests as are necessary" to make a finding of gestational age, fetal weight, and lung maturity. Brief for Appellees 26-30.
We must first determine the meaning of § 188.029 under Missouri law. Our usual practice is to defer to the lower court's construction of a state statute, but we believe the Court of Appeals has "fallen into plain error" in this case. Frisby v. Schultz, 487 U.S. 474, 483 (1988); see Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 500, n. 9 (1985). " `In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " Philbrook v. Glodgett, 421 U.S. 707, 713 (1975), quoting United States v. Heirs of Boisdore, 8 How. 113, 122 (1849). See Chemehuevi Tribe of Indians v. FPC, 420 U.S. 395, 402-403 (1975); Kokoszka v. Belford, 417 U.S. 642, 650 (1974). The Court of Appeals' interpretation also runs "afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties." Frisby, supra, at 483.
We think the viability-testing provision makes sense only if the second sentence is read to require only those tests that are useful to making subsidiary findings as to viability. If we construe this provision to require a physician to perform those tests needed to make the three specified findings in all circumstances, including when the physician's reasonable professional judgment indicates that the tests would be irrelevant to determining viability or even dangerous to the mother and the fetus, the second sentence of § 188.029 would
The viability-testing provision of the Missouri Act is concerned with promoting the State's interest in potential human life rather than in maternal health. Section 188.029 creates what is essentially a presumption of viability at 20 weeks, which the physician must rebut with tests indicating that the fetus is not viable prior to performing an abortion. It also directs the physician's determination as to viability by specifying consideration, if feasible, of gestational age, fetal weight, and lung capacity. The District Court found that "the medical evidence is uncontradicted that a 20-week fetus is not viable," and that "23 1/2 to 24 weeks gestation is the earliest point in pregnancy where a reasonable possibility of viability
In Roe v. Wade, the Court recognized that the State has "important and legitimate" interests in protecting maternal health and in the potentiality of human life. 410 U. S., at 162. During the second trimester, the State "may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Id., at 164. After viability, when the State's interest in potential human life was held to become compelling, the State "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id., at 165.
In Colautti v. Franklin, 439 U.S. 379 (1979), upon which appellees rely, the Court held that a Pennsylvania statute regulating the standard of care to be used by a physician performing an abortion of a possibly viable fetus was void for vagueness. Id., at 390-401. But in the course of reaching that conclusion, the Court reaffirmed its earlier statement in Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976), that " `the determination of whether a particular
We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specifying elements of informed consent to be provided abortion patients, for example, were invalidated if they were thought to "structur[e] . . . the dialogue between the woman and her physician." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 763 (1986). As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judicial review, id., at 802 (WHITE, J., dissenting), or for any other surgical procedure except abortion. Id., at 783 (Burger, C. J., dissenting).
In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework — trimesters and viability — are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine.
In the second place, we do not see why the State's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. The dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the "fundamental right" recognized in Roe the State's "compelling interest" in protecting potential human life throughout pregnancy. "[T]he State's interest, if compelling after viability, is equally compelling before viability." Thornburgh, 476 U. S., at 795 (WHITE, J., dissenting); see id., at 828 (O'CONNOR, J., dissenting) ("State has compelling interests in ensuring maternal health and in protecting potential human life, and these interests exist `throughout pregnancy' ") (citation omitted).
The tests that § 188.029 requires the physician to perform are designed to determine viability. The State here has chosen viability as the point at which its interest in potential human life must be safeguarded. See Mo. Rev. Stat. § 188.030 (1986) ("No abortion of a viable unborn child shall be performed unless necessary to preserve the life or health of the woman"). It is true that the tests in question increase the expense of abortion, and regulate the discretion of the physician in determining the viability of the fetus. Since the tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were in fact second-trimester abortions. But we are satisfied that the requirement of these tests permissibly furthers
JUSTICE BLACKMUN takes us to task for our failure to join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U.S. 479 (1965), and Roe. But Griswold v. Connecticut, unlike Roe, did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. As such, it was far different from the opinion, if not the holding, of Roe v. Wade, which sought to establish a constitutional framework for judging state regulation of abortion during the entire term of pregnancy. That framework sought to deal with areas of medical practice traditionally subject to state regulation, and it sought to balance once and for all by reference only to the calendar the claims of the State to protect the fetus as a form of human life against the claims of a woman to decide for herself whether or not to abort a fetus she was carrying. The experience of the Court in applying Roe v. Wade in later cases, see supra, at 518, n. 15, suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a "fundamental right" to abortion, as the Court described it in Akron, 462 U. S. at 420, n. 1, a "limited fundamental constitutional right," which JUSTICE BLACKMUN today treats Roe as having established, post, at 555, or a liberty interest protected by the Due Process Clause, which we believe it to be. The Missouri testing requirement here is reasonably designed to ensure that abortions are not performed where the fetus is viable — an end which all concede is legitimate — and that is sufficient to sustain its constitutionality.
JUSTICE BLACKMUN also accuses us, inter alia, of cowardice and illegitimacy in dealing with "the most politically divisive domestic legal issue of our time." Post, at 559. There is
Both appellants and the United States as amicus curiae have urged that we overrule our decision in Roe v. Wade. Brief for Appellants 12-18; Brief for United States as Amicus Curiae 8-24. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. 410 U. S., at 117-118. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, id., at 164, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.
I concur in Parts I, II-A, II-B, and II-C of the Court's opinion.
Nothing in the record before us or the opinions below indicates that subsections 1(1) and 1(2) of the preamble to Missouri's abortion regulation statute will affect a woman's decision to have an abortion. JUSTICE STEVENS, following appellees, see Brief for Appellees 22, suggests that the preamble may also "interfer[e] with contraceptive choices," post, at 564, because certain contraceptive devices act on a female ovum after it has been fertilized by a male sperm. The Missouri Act defines "conception" as "the fertilization of the ovum of a female by a sperm of a male," Mo. Rev. Stat. § 188.015(3) (1986), and invests "unborn children" with "protectable interests in life, health, and well-being," § 1.205.1(2), from "the moment of conception . . . ." § 1.205.3. JUSTICE STEVENS asserts that any possible interference with a woman's right to use such postfertilization contraceptive devices would be unconstitutional under Griswold v. Connecticut, 381 U.S. 479 (1965), and our subsequent contraception cases. Post, at 564-566. Similarly, certain amici suggest that the Missouri Act's preamble may prohibit the developing technology of in vitro fertilization, a technique used to aid couples otherwise unable to bear children in which a number of ova are removed from the woman and fertilized by male sperm. This process often produces excess fertilized ova ("unborn children" under the Missouri Act's definition) that are discarded rather than reinserted into the woman's uterus. Brief for Association of Reproductive Health Professionals
Similarly, it seems to me to follow directly from our previous decisions concerning state or federal funding of abortions, Harris v. McRae, 448 U.S. 297 (1980), Maher v. Roe, 432 U.S. 464 (1977), and Poelker v. Doe, 432 U.S. 519 (1977), that appellees' facial challenge to the constitutionality of Missouri's ban on the utilization of public facilities and the participation of public employees in the performance of abortions not necessary to save the life of the mother, Mo. Rev. Stat. §§ 188.210, 188.215 (1986), cannot succeed. Given Missouri's definition of "public facility" as "any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivisions thereof," § 188.200(2), there may be conceivable applications of the ban on the use of public facilities that would be unconstitutional. Appellees and amici suggest that the State could try to enforce the ban against private hospitals using public water and sewage lines, or against private hospitals leasing state-owned equipment or state land. See Brief for Appellees 49-50; Brief for National Association of Public Hospitals as Amicus Curiae
I also agree with the Court that, under the interpretation of § 188.205 urged by the State and adopted by the Court, there is no longer a case or controversy before us over the constitutionality of that provision. I would note, however, that this interpretation of § 188.205 is not binding on the Supreme Court of Missouri which has the final word on the meaning of that State's statutes. Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 395 (1988); O'Brien v. Skinner, 414 U.S. 524, 531 (1974). Should it happen that § 188.205, as ultimately interpreted by the Missouri Supreme Court, does prohibit publicly employed health professionals from giving specific medical advice to pregnant women, "the vacation and dismissal of the complaint that has become moot `clears the path for future relitigation of the issues between the parties,' should subsequent events rekindle their controversy." Deakins v. Monaghan, 484 U.S. 193, 201, n. 5 (1988), quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950). Unless such events make their appearance and give rise to relitigation, I agree that we and all federal
In its interpretation of Missouri's "determination of viability" provision, Mo. Rev. Stat. § 188.029 (1986), see ante, at 513-521, the plurality has proceeded in a manner unnecessary to deciding the question at hand. I agree with the plurality that it was plain error for the Court of Appeals to interpret the second sentence of § 188.029 as meaning that "doctors must perform tests to find gestational age, fetal weight and lung maturity." 851 F.2d 1071, 1075, n. 5 (CA8 1988) (emphasis in original). When read together with the first sentence of § 188.029 — which requires a physician to "determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinary skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions" — it would be contradictory nonsense to read the second sentence as requiring a physician to perform viability examinations and tests in situations where it would be careless and imprudent to do so. The plurality is quite correct: "the viability-testing provision makes sense only if the second sentence is read to require only those tests that are useful to making subsidiary findings as to viability," ante, at 514, and, I would add, only those examinations and tests that it would not be imprudent or careless to perform in the particular medical situation before the physician.
Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court's past decisions concerning state regulation of abortion. Therefore, there is no necessity to accept the State's invitation to reexamine the constitutional validity of Roe v. Wade, 410 U.S. 113 (1973). Where there is no need to decide a constitutional question, it is a venerable principle of this Court's adjudicatory processes not to do so, for "[t]he Court will not `anticipate a question of constitutional law in advance of the
In assessing § 188.029 it is especially important to recognize that appellees did not appeal the District Court's ruling that the first sentence of § 188.029 is constitutional. 662 F.Supp. 407, 420-422 (WD Mo. 1987). There is, accordingly, no dispute between the parties before us over the constitutionality of the "presumption of viability at 20 weeks," ante, at 515, created by the first sentence of § 188.029. If anything might arguably conflict with the Court's previous decisions concerning the determination of viability, I would think it is the introduction of this presumption. The plurality, see ante, at 515, refers to a passage from Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976): "The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must
Appellees suggest that the interpretation of § 188.029 urged by the State may "virtually eliminat[e] the constitutional issue in this case." Brief for Appellees 30. Appellees therefore propose that we should abstain from deciding that provision's constitutionality "in order to allow the state courts to render the saving construction the State has proposed." Ibid. Where the lower court has so clearly fallen into error I do not think abstention is necessary or prudent. Accordingly, I consider the constitutionality of the second sentence of § 188.029, as interpreted by the State, to determine whether the constitutional issue is actually eliminated.
I do not think the second sentence of § 188.029, as interpreted by the Court, imposes a degree of state regulation on the medical determination of viability that in any way conflicts with prior decisions of this Court. As the plurality
The courts below, on the interpretation of § 188.029 rejected here, found the second sentence of that provision at odds with this passage from Colautti. See 851 F. 2d, at 1074; 662 F. Supp., at 423. On this Court's interpretation of § 188.029 it is clear that Missouri has not substituted any of the "elements entering into the ascertainment of viability" as "the determinant of when the State has a compelling interest in the life or health of the fetus." All the second sentence of § 188.029 does is to require, when not imprudent, the performance of "those tests that are useful to making subsidiary findings as to viability." Ante, at 514 (emphasis added). Thus, consistent with Colautti, viability remains the "critical point" under § 188.029.
Finally, and rather halfheartedly, the plurality suggests that the marginal increase in the cost of an abortion created by Missouri's viability testing provision may make § 188.029, even as interpreted, suspect under this Court's decision in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 434-439 (1983), striking down a second-trimester hospitalization requirement. See ante, at 517. I dissented from the Court's opinion in Akron because it was my view that, even apart from Roe's trimester framework which I continue to consider problematic, see Thornburgh, supra, at
It is clear to me that requiring the performance of examinations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be medically imprudent to do so, does not impose an undue burden on a woman's abortion decision. On this ground alone I would reject the suggestion that § 188.029 as interpreted is unconstitutional. More to the point, however, just as I see no conflict between § 188.029 and Colautti or any decision of this Court concerning a State's ability to give effect to its interest in potential life, I see no conflict between § 188.029 and the Court's opinion in Akron. The second-trimester hospitalization requirement struck down in Akron imposed, in the majority's view, "a heavy, and unnecessary, burden," 462 U. S., at 438, more than doubling the cost of "women's access to a relatively inexpensive, otherwise accessible, and safe abortion procedure." Ibid.; see also id., at 434. By contrast, the cost of examinations and tests that could usefully and prudently be performed when a woman is 20-24 weeks pregnant to determine whether the fetus is viable would only marginally, if at all, increase the cost of an abortion. See Brief for American Association of Prolife Obstetricians and Gynecologists et al. as Amici Curiae 3 ("At twenty weeks gestation, an ultrasound examination to determine gestational age is standard medical practice. It is routinely provided by the plaintiff clinics. An ultrasound examination can effectively provide all three designated findings of sec. 188.029"); id., at 22 ("A finding of fetal weight can be obtained from the same ultrasound test used to determine gestational age"); id., at 25 ("There are a number of different
Moreover, the examinations and tests required by § 188.029 are to be performed when viability is possible. This feature of § 188.029 distinguishes it from the second-trimester hospitalization requirement struck down by the Akron majority. As the Court recognized in Thornburgh, the State's compelling interest in potential life postviability renders its interest in determining the critical point of viability equally compelling. See supra, at 527-528. Under the Court's precedents, the same cannot be said for the Akron second-trimester hospitalization requirement. As I understand the Court's opinion in Akron, therefore, the plurality's suggestion today that Akron casts doubt on the validity of § 188.029, even as the Court has interpreted it, is without foundation and cannot provide a basis for reevaluating Roe. Accordingly, because the Court of Appeals misinterpreted § 188.029, and because, properly interpreted, § 188.029 is not inconsistent with any of this Court's prior precedents, I would reverse the decision of the Court of Appeals.
In sum, I concur in Parts I, II-A, II-B, and II-C of the Court's opinion and concur in the judgment as to Part II-D.
I join Parts I, II-A, II-B, and II-C of the opinion of the Court. As to Part II-D, I share JUSTICE BLACKMUN'S view, post, at 556, that it effectively would overrule Roe v. Wade, 410 U.S. 113 (1973). I think that should be done, but would do it more explicitly. Since today we contrive to avoid doing it, and indeed to avoid almost any decision of national import, I need not set forth my reasons, some of which have been well recited in dissents of my colleagues in other cases. See, e. g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 786-797 (1986) (WHITE, J., dissenting); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 453-459 (1983) (O'CONNOR, J., dissenting); Roe v. Wade, supra, at 172-178 (REHNQUIST, J., dissenting); Doe v. Bolton, 410 U.S. 179, 221-223 (1973) (WHITE, J., dissenting).
The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court's self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not juridical — a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.
JUSTICE O'CONNOR'S assertion, ante, at 526, that a " `fundamental rule of judicial restraint' " requires us to avoid reconsidering Roe, cannot be taken seriously. By finessing Roe we do not, as she suggests, ibid., adhere to the strict and venerable rule that we should avoid " `decid[ing] questions of a constitutional nature.' " We have not disposed of this case on some statutory or procedural ground, but have decided, and could not avoid deciding, whether the Missouri statute meets the requirements of the United States Constitution.
The Court has often spoken more broadly than needed in precisely the fashion at issue here, announcing a new rule of constitutional law when it could have reached the identical result by applying the rule thereby displaced. To describe
The real question, then, is whether there are valid reasons to go beyond the most stingy possible holding today. It seems to me there are not only valid but compelling ones.
Of the four courses we might have chosen today — to reaffirm Roe, to overrule it explicitly, to overrule it sub silentio, or to avoid the question — the last is the least responsible. On the question of the constitutionality of § 188.029, I concur in the judgment of the Court and strongly dissent from the manner in which it has been reached.
JUSTICE O'CONNOR would nevertheless uphold the law because it "does not impose an undue burden on a woman's abortion decision." Ante, at 530. This conclusion is supported by the observation that the required tests impose only a marginal cost on the abortion procedure, far less of an increase than the cost-doubling hospitalization requirement invalidated in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). See ante, at 530-531. The fact that the challenged regulation is less costly than what we struck down in Akron tells us only that we cannot decide the present case on the basis of that earlier decision. It does not tell us whether the present requirement is an "undue burden," and I know of no basis for determining that this particular burden (or any other for that matter) is "due." One could with equal justification conclude that it is not. To avoid the question of Roe v. Wade's validity, with the attendant costs that this will have for the Court and for the principles of self-governance, on the basis of a standard that offers "no guide but the Court's own discretion," Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting), merely adds to the irrationality of what we do today.
Similarly irrational is the new concept that JUSTICE O'CONNOR introduces into the law in order to achieve her result, the notion of a State's "interest in potential life when viability is possible." Ante, at 528. Since "viability" means the mere possibility (not the certainty) of survivability outside the womb, "possible viability" must mean the possibility of a possibility of survivability outside the womb. Perhaps our next opinion will expand the third trimester into the second even further, by approving state action designed to take account of "the chance of possible viability."
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part.
Today, Roe v. Wade, 410 U.S. 113 (1973), and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive but are not secure. Although the Court extricates itself from this case without making a single, even incremental, change in the law of abortion, the plurality and JUSTICE SCALIA would overrule Roe (the first silently, the other explicitly) and would return to the States
Nor in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute, to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe "undisturbed," albeit "modif[ied] and narrow[ed]." Ante, at 521. But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality's analysis, and that the plurality provides no substitute for Roe's protective umbrella.
I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.
THE CHIEF JUSTICE parades through the four challenged sections of the Missouri statute seriatim. I shall not do this, but shall relegate most of my comments as to those sections to the margin.
In the plurality's view, the viability-testing provision imposes a burden on second-trimester abortions as a way of furthering the State's interest in protecting the potential life of the fetus. Since under the Roe framework, the State may not fully regulate abortion in the interest of potential life (as opposed to maternal health) until the third trimester, the plurality finds it necessary, in order to save the Missouri testing provision, to throw out Roe's trimester framework. Ante, at 518-520. In flat contradiction to Roe, 410 U. S., at 163, the plurality concludes that the State's interest in potential life is compelling before viability, and upholds the testing provision
At the outset, I note that in its haste to limit abortion rights, the plurality compounds the errors of its analysis by needlessly reaching out to address constitutional questions that are not actually presented. The conflict between § 188.029 and Roe's trimester framework, which purportedly drives the plurality to reconsider our past decisions, is a contrived conflict: the product of an aggressive misreading of the viability-testing requirement and a needlessly wooden application of the Roe framework.
The plurality's reading of § 188.029 is irreconcilable with the plain language of the statute and is in derogation of this Court's settled view that "district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States.' " Frisby v. Schultz, 487 U.S. 474, 482 (1988), quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 499-500 (1985). Abruptly setting aside the construction of § 188.029 adopted by both the District Court and Court of Appeals as "plain error," the plurality reads the viability-testing provision as requiring only that before a physician may perform an abortion on a woman whom he believes to be carrying a fetus of 20 or more weeks gestational age, the doctor must determine whether the fetus is viable and, as part of that exercise, must, to the extent feasible and consistent with sound medical practice, conduct tests necessary to make findings of gestational age, weight, and lung maturity. Ante, at 514-517. But the plurality's reading of the provision, according to which the statute requires the physician to perform tests only in order to determine viability, ignores the statutory language explicitly directing that "the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings" in the mother's medical record. § 188.029 (emphasis added). The
Had the plurality read the statute as written, it would have had no cause to reconsider the Roe framework. As properly construed, the viability-testing provision does not pass constitutional muster under even a rational-basis standard, the least restrictive level of review applied by this Court. See Williamson v. Lee Optical Co., 348 U.S. 483 (1955). By mandating tests to determine fetal weight and lung maturity for every fetus thought to be more than 20 weeks gestational age, the statute requires physicians to undertake procedures, such as amniocentesis, that, in the situation presented, have no medical justification, impose significant additional health risks on both the pregnant woman and the fetus, and bear no rational relation to the State's interest in protecting fetal life.
The plurality eschews this straightforward resolution, in the hope of precipitating a constitutional crisis. Far from avoiding constitutional difficulty, the plurality attempts to engineer a dramatic retrenchment in our jurisprudence by exaggerating the conflict between its untenable construction of § 188.029 and the Roe trimester framework.
No one contests that under the Roe framework the State, in order to promote its interest in potential human life, may regulate and even proscribe nontherapeutic abortions once the fetus becomes viable. Roe, 410 U. S., at 164-165. If, as the plurality appears to hold, the testing provision simply requires a physician to use appropriate and medically sound tests to determine whether the fetus is actually viable when the estimated gestational age is greater than 20 weeks (and therefore within what the District Court found to be the margin of error for viability, ante, at 515-516), then I see little or no conflict with Roe.
How ironic it is, then, and disingenuous, that the plurality scolds the Court of Appeals for adopting a construction of the statute that fails to avoid constitutional difficulties. Ante, at
Having set up the conflict between § 188.029 and the Roe trimester framework, the plurality summarily discards Roe's analytic core as " `unsound in principle and unworkable in practice.' " Ante, at 518, quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985). This is so, the plurality claims, because the key elements of the framework do not appear in the text of the Constitution, because the framework more closely resembles a regulatory code than a body of constitutional doctrine, and because under the framework the State's interest in potential human life is considered compelling only after viability, when, in fact, that interest is equally compelling throughout pregnancy. Ante, at 519-520. The plurality does not bother to explain these alleged flaws in Roe. Bald assertion masquerades as reasoning. The object, quite clearly, is not to persuade, but to prevail.
The plurality opinion is far more remarkable for the arguments that it does not advance than for those that it does. The plurality does not even mention, much less join, the true jurisprudential debate underlying this case: whether the Constitution includes an "unenumerated" general right to
But rather than arguing that the text of the Constitution makes no mention of the right to privacy, the plurality complains that the critical elements of the Roe framework — trimesters
With respect to the Roe framework, the general constitutional principle, indeed the fundamental constitutional right, for which it was developed is the right to privacy, see, e. g., Griswold v. Connecticut, 381 U.S. 479 (1965), a species of "liberty" protected by the Due Process Clause, which under our past decisions safeguards the right of women to exercise some control over their own role in procreation. As we recently reaffirmed in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), few decisions are "more basic to individual dignity and autonomy" or more appropriate to that "certain private sphere of individual liberty" that the Constitution reserves from the intrusive reach of government than the right to make the uniquely personal, intimate, and self-defining decision whether to end
The plurality next alleges that the result of the trimester framework has "been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine." Ante, at 518. Again, if this were a true and genuine concern, we would have to abandon vast areas of our constitutional jurisprudence. The plurality complains that under the trimester framework the Court has distinguished between a city ordinance requiring that second-trimester abortions be performed in clinics and a state law requiring that these abortions be performed in hospitals, or between laws requiring that certain information be furnished to a woman by a physician or his assistant and those requiring that such information be furnished by the physician exclusively. Ante, at 518, n. 15, citing Simopoulos v. Virginia, 462 U.S. 506 (1983),
That numerous constitutional doctrines result in narrow differentiations between similar circumstances does not mean that this Court has abandoned adjudication in favor of regulation. Rather, these careful distinctions reflect the process of constitutional adjudication itself, which is often highly fact specific, requiring such determinations as whether state laws are "unduly burdensome" or "reasonable" or bear a "rational" or "necessary" relation to asserted state interests. In a recent due process case, THE CHIEF JUSTICE wrote for the
These "differences of degree" fully account for our holdings in Simopoulos, supra, and Akron, supra. Those decisions rest on this Court's reasoned and accurate judgment that hospitalization and doctor-counseling requirements unduly burdened the right of women to terminate a pregnancy and were not rationally related to the State's asserted interest in the health of pregnant women, while Virginia's substantially less restrictive regulations were not unduly burdensome and did rationally serve the State's interest.
Finally, the plurality asserts that the trimester framework cannot stand because the State's interest in potential life is compelling throughout pregnancy, not merely after viability. Ante, at 519. The opinion contains not one word of rationale for its view of the State's interest. This "it-is-so-because-we-say-so" jurisprudence constitutes nothing other than an attempted exercise of brute force; reason, much less persuasion, has no place.
In answering the plurality's claim that the State's interest in the fetus is uniform and compelling throughout pregnancy, I cannot improve upon what JUSTICE STEVENS has written:
See also Roe, 410 U. S., at 129-147.
For my own part, I remain convinced, as six other Members of this Court 16 years ago were convinced, that the Roe framework, and the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State's interest in potential human life. The viability line reflects the biological facts and truths of fetal development; it marks that threshold moment prior to which a fetus cannot survive separate from the woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman. At the same time, the viability standard takes account of the undeniable fact that as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling. As a practical matter, because viability follows "quickening" — the point at which a woman feels movement in her womb — and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion while
Having contrived an opportunity to reconsider the Roe framework, and then having discarded that framework, the plurality finds the testing provision unobjectionable because it "permissibly furthers the State's interest in protecting potential human life." Ante, at 519-520. This newly minted
The "permissibly furthers" standard completely disregards the irreducible minimum of Roe: the Court's recognition that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy. That right receives no meaningful recognition in the plurality's written opinion. Since, in the plurality's view, the State's interest in potential life is compelling as of the moment of conception, and is therefore served only if abortion is abolished, every hindrance to a woman's ability to obtain an abortion must be "permissible." Indeed, the more severe the hindrance, the more effectively (and permissibly) the State's interest would be furthered. A tax on abortions or a criminal prohibition would both satisfy the plurality's standard. So, for that
The plurality pretends that Roe survives, explaining that the facts of this case differ from those in Roe: here, Missouri has chosen to assert its interest in potential life only at the point of viability, whereas, in Roe, Texas had asserted that interest from the point of conception, criminalizing all abortions, except where the life of the mother was at stake. Ante, at 521. This, of course, is a distinction without a difference. The plurality repudiates every principle for which Roe stands; in good conscience, it cannot possibly believe that Roe lies "undisturbed" merely because this case does not call upon the Court to reconsider the Texas statute, or one like it. If the Constitution permits a State to enact any statute that reasonably furthers its interest in potential life, and if that interest arises as of conception, why would the Texas statute fail to pass muster? One suspects that the plurality agrees. It is impossible to read the plurality opinion and especially its final paragraph, without recognizing its implicit invitation to every State to enact more and more restrictive abortion laws, and to assert their interest in potential life as of the moment of conception. All these laws will satisfy the plurality's nonscrutiny, until sometime, a new regime of old dissenters and new appointees will declare what the plurality intends: that Roe is no longer good law.
Thus, "not with a bang, but a whimper," the plurality discards a landmark case of the last generation, and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children. The plurality does so either oblivious or insensitive to the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life. The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term. The plurality would clear the way again for the State to conscript a woman's body and to force upon her a "distressful life and future." Roe, 410 U. S., at 153.
The result, as we know from experience, see Cates & Rochat, Illegal Abortions in the United States: 1972-1974, 8 Family Planning Perspectives 86, 92 (1976), would be that every year hundreds of thousands of women, in desperation, would defy the law, and place their health and safety in the unclean and unsympathetic hands of back-alley abortionists, or they would attempt to perform abortions upon themselves,
Of the aspirations and settled understandings of American women, of the inevitable and brutal consequences of what it is doing, the tough-approach plurality utters not a word. This silence is callous. It is also profoundly destructive of this Court as an institution. To overturn a constitutional decision is a rare and grave undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history. Although the doctrine of stare decisis applies with somewhat diminished force in constitutional cases generally, ante, at 518, even in ordinary constitutional cases "any departure from . . . stare decisis demands special justification." Arizona v. Rumsey, 467 U.S. 203, 212 (1984). See also Vasquez v. Hillery, 474 U.S. 254, 266 (1986) ("[T]he careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged `to bring its opinions into agreement with experience and with facts newly ascertained,' " quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412 (1932) (Brandeis, J., dissenting)). This requirement of justification applies with unique force where, as here, the Court's abrogation of precedent would destroy people's firm belief, based on past decisions of this Court, that they possess an unabridgeable right to undertake certain conduct.
This comes at a cost. The doctrine of stare decisis "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact." 474 U. S., at 265-266. Today's decision involves the most politically divisive domestic legal issue of our time. By refusing to explain or to justify its proposed revolutionary revision in the law of abortion, and by refusing to abide not only by our precedents, but also by our canons for reconsidering those precedents, the plurality invites charges of cowardice and
For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.
JUSTICE STEVENS, concurring in part and dissenting in part.
Having joined Part II-C of the Court's opinion, I shall not comment on § 188.205 of the Missouri statute. With respect to the challenged portions of §§ 188.210 and 188.215, I agree with JUSTICE BLACKMUN, ante, at 539-541, n. 1 (concurring in part and dissenting in part), that the record identifies a sufficient number of unconstitutional applications to support the Court of Appeals' judgment invalidating those provisions. The reasons why I would also affirm that court's invalidation of § 188.029, the viability testing provision, and §§ 1.205.1(1), (2) of the preamble,
It seems to me that in Part II-D of its opinion, the plurality strains to place a construction on § 188.029
I am unable to accept JUSTICE O'CONNOR'S construction of the second sentence in § 188.029, however, because I believe it is foreclosed by two controlling principles of statutory interpretation. First, it is our settled practice to accept "the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state-law issue without such guidance might have justified a different conclusion." Bishop v. Wood, 426 U.S. 341, 346 (1976).
My interpretation of the plain language is supported by the structure of the statute as a whole, particularly the preamble, which "finds" that life "begins at conception" and further commands that state laws shall be construed to provide the maximum protection to "the unborn child at every stage of development." Mo. Rev. Stat. §§ 1.205.1(1), 1.205.2 (1986). I agree with the District Court that "[o]bviously, the purpose of this law is to protect the potential life of the fetus, rather than to safeguard maternal health." 662 F. Supp., at 420. A literal reading of the statute tends to accomplish that goal. Thus it is not "incongruous," ante, at 515, to assume that the Missouri Legislature was trying to protect the potential human life of nonviable fetuses by making the abortion decision more costly.
The Missouri statute defines "conception" as "the fertilization of the ovum of a female by a sperm of a male," Mo. Rev. Stat. § 188.015(3) (1986), even though standard medical texts equate "conception" with implantation in the uterus, occurring about six days after fertilization.
To the extent that the Missouri statute interferes with contraceptive choices, I have no doubt that it is unconstitutional under the Court's holdings in Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); and Carey v. Population Services International, 431 U.S. 678 (1977). The place of Griswold in the mosaic of decisions defining a woman's liberty interest was accurately stated by Justice Stewart in his concurring opinion in Roe v. Wade, 410 U.S. 113, 167-170 (1973):
One might argue that the Griswold holding applies to devices "preventing conception," 381 U. S., at 480 — that is, fertilization — but not to those preventing implantation, and therefore, that Griswold does not protect a woman's choice to use an IUD or take a morning-after pill. There is unquestionably
Indeed, I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution. This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, see McGowan v. Maryland, 366 U.S. 420, 442 (1961); Harris v. McRae, 448 U.S. 297, 319-320 (1980), or on the fact that the legislators who voted to enact it may have been motivated by religious considerations, see Washington v. Davis, 426 U.S. 229, 253 (1976) (STEVENS, J., concurring). Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths,
My concern can best be explained by reference to the position on this issue that was widely accepted by the leaders of the Roman Catholic Church for many years. The position is summarized in a report, entitled "Catholic Teaching On Abortion," prepared by the Congressional Research Service of the Library of Congress. It states in part:
If the views of St. Thomas were held as widely today as they were in the Middle Ages, and if a state legislature were to enact a statute prefaced with a "finding" that female life begins 80 days after conception and male life begins 40 days after conception, I have no doubt that this Court would promptly conclude that such an endorsement of a particular religious tenet is violative of the Establishment Clause.
In my opinion the difference between that hypothetical statute and Missouri's preamble reflects nothing more than a difference in theological doctrine. The preamble to the Missouri statute endorses the theological position that there is the same secular interest in preserving the life of a fetus during the first 40 or 80 days of pregnancy as there is after viability — indeed, after the time when the fetus has become a "person" with legal rights protected by the Constitution.
As a secular matter, there is an obvious difference between the state interest in protecting the freshly fertilized egg and the state interest in protecting a 9-month-gestated, fully sentient fetus on the eve of birth. There can be no interest in protecting the newly fertilized egg from physical pain or mental anguish, because the capacity for such suffering does not yet exist; respecting a developed fetus, however, that interest is valid. In fact, if one prescinds the theological concept of ensoulment — or one accepts St. Thomas Aquinas' view that ensoulment does not occur for at least 40 days — a State has no greater secular interest in protecting the potential life of an embryo that is still "seed" than in protecting the potential life of a sperm or an unfertilized ovum.
There have been times in history when military and economic interests would have been served by an increase in population. No one argues today, however, that Missouri can assert a societal interest in increasing its population as its secular reason for fostering potential life. Indeed, our national policy, as reflected in legislation the Court upheld last Term, is to prevent the potential life that is produced by "pregnancy and childbirth among unmarried adolescents." Bowen v. Kendrick, 487 U.S. 589, 593 (1988); accord, id., at 602. If the secular analysis were based on a strict balancing of fiscal costs and benefits, the economic costs of unlimited childbearing would outweigh those of abortion. There is, of course, an important and unquestionably valid secular interest in "protecting a young pregnant woman from the consequences of an incorrect decision," Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 102 (1976)
The State's suggestion that the "finding" in the preamble to its abortion statute is, in effect, an amendment to its tort, property, and criminal laws is not persuasive. The Court of Appeals concluded that the preamble "is simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations." 851 F. 2d, at 1076. Supporting that construction is the state constitutional prohibition against legislative enactments pertaining to more than one subject matter. Mo. Const., Art. 3, § 23. See In re Ray, 83 B.R. 670 (Bkrtcy Ct., ED Mo. 1988); Berry v. Majestic Milling Co., 223 S. W. 738 (Mo. 1920). Moreover, none of the tort, property, or criminal law cases cited by the State was either based on or buttressed by a theological answer to the question of when life begins. Rather, the Missouri courts, as well as a number of other state courts, had already concluded that a "fetus is a `person,' `minor,' or `minor child' within the meaning of their particular wrongful death statutes."
Bolstering my conclusion that the preamble violates the First Amendment is the fact that the intensely divisive character of much of the national debate over the abortion issue reflects the deeply held religious convictions of many participants in the debate.
In my opinion the preamble to the Missouri statute is unconstitutional for two reasons. To the extent that it has substantive impact on the freedom to use contraceptive procedures, it is inconsistent with the central holding in Griswold. To the extent that it merely makes "legislative findings without operative effect," as the State argues, Brief for Appellants 22, it violates the Establishment Clause of the First
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neuborne, Janet Benshoof, Rachael N. Pine, and Lynn M. Paltrow; for the American Jewish Congress et al. by Martha L. Minow; for the American Library Association et al. by Bruce J. Ennis and Mark D. Schneider; for the American Medical Association et al. by Jack R. Bierig, Carter G. Phillips, Elizabeth H. Esty, Stephan E. Lawton, Ann E. Allen, Laurie R. Rockett, and Joel I. Klein; for the American Psychological Association by Donald N. Bersoff; for the American Public Health Association et al. by John H. Hall and Nadine Taub; for Americans for Democratic Action et al. by Marsha S. Berzon; for Americans United for Separation of Church and State by Lee Boothby, Robert W. Nixon, and Robert J. Lipshutz; for the Association of Reproductive Health Professionals et al. by Colleen K. Connell and Dorothy B. Zimbrakos; for Bioethicists for Privacy by George J. Annas; for Catholics for a Free Choice et al. by Patricia Hennessey; for the Center for Population Options et al. by John H. Henn and Thomas Asher; for the Committee on Civil Rights of the Bar of the City of New York et al. by Jonathan Lang, Diane S. Wilner, Arthur S. Leonard, Audrey S. Feinberg, and Janice Goodman; for 22 International Women's Health Organizations by Kathryn Kolbert; for the American Nurses' Association et al. by E. Calvin Golumbic; for the National Coalition Against Domestic Violence by David A. Strauss; for the National Family Planning and Reproductive Health Association by James L. Feldesman, Jeffrey K. Stith, and Thomas E. Zemaitis; for the National Association of Public Hospitals by Alan K. Parver and Phyllis E. Bernard; for Population-Environment Balance et al. by Dina R. Lassow; for 281 American Historians by Sylvia A. Law; and for 2,887 Women Who Have Had Abortions et al. by Sarah E. Burns.
Briefs of amici curiae were filed for the State of California et al. by Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solicitor General, and Suzanne M. Lynn and Marla Tepper, Assistant Attorneys General, James M. Shannon, Attorney General of Massachusetts, and Suzanne E. Durrell and Madelyn F. Wessel, Assistant Attorneys General, Elizabeth Holtzman, pro se, Barbara D. Underwood, John K. Van de Kamp, Attorney General of California, Duane Woodard, Attorney General of Colorado, Jim Mattox, Attorney General of Texas, and Jeffrey L. Amestoy, Attorney General of Vermont; for the State of Louisiana et al. by William J. Guste, Jr., Attorney General of Louisiana, Jo Ann P. Levert, Assistant Attorney General, and Thomas A. Rayer, Robert K. Corbin, Attorney General of Arizona, Jim Jones, Attorney General of Idaho, and Ernest D. Preate, Jr., Attorney General of Pennsylvania; for Agudath Israel of America by Steven D. Prager; for the American Academy of Medical Ethics by James Bopp, Jr.; for the California National Organization for Women et al. by Kathryn A. Sure; for American Collegians for Life, Inc., et al. by Robert A. Destro; for the Canadian Abortion Rights Action League et al. by Estelle Rogers; for the Association for Public Justice et al. by Joseph W. Dellapenna; for Birthright, Inc., by Joseph I. McCullough, Jr.; for Catholics United for Life et al. by Walter M. Weber, Michael J. Woodruff, Charles E. Rice, and Michael J. Laird; for Christian Advocates Serving Evangelism by Theodore H. Amshoff, Jr.; for Doctors for Life et al. by Andrew F. Puzder and Kenneth C. Jones; for Feminists For Life of America et al. by Christine Smith Torre; for Free Speech Advocates by Thomas Patrick Monaghan; for Human Life International by Robert L. Sassone; for the International Right to Life Federation by John J. Potts; for the National Association of Women Lawyers et al. by Nicholas DeB. Katzenbach, Leona Beane, and Estelle H. Rogers; for the National Council of Negro Women, Inc., et al. by Rhonda Copelon; for the National Organization for Women by John S. L. Katz; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the New England Christian Action Council, Inc., by Philip D. Moran; for the Right to Life League of Southern California, Inc., by Robert L. Sassone; for 77 Organizations Committed to Women's Equality by Judith L. Lichtman, Donna R. Lenhoff, Marcia Greenberger, Stephanie Ridder, and Wendy Webster Williams; for Certain Members of the Congress of the United States by Burke Marshall and Norman Redlich; for Congressman Christopher H. Smith et al. by Albert P. Blaustein, Edward R. Grant, and Ann-Louise Lohr; for 608 State Legislators by Herma Hill Kay, James J. Brosnahan, and Jack W. Londen; for Certain Members of the General Assembly of the Commonwealth of Pennsylvania by William Bentley Ball, Philip J. Murren, and Maura K. Quinlan; for Certain American State Legislators by Paul Benjamin Linton and Clarke D. Forsythe; for A Group of American Law Professors by Norman Redlich; for 167 Distinguished Scientists and Physicians by Jay Kelly Wright; for Edward Allen by Robert L. Sassone; for Larry Joyce by Thomas P. Joyce; for Paul Marx by Robert L. Sassone; for Bernard N. Nathanson by Mr. Sassone; and for Austin Vaughn et al. by Mr. Sassone.
In June 1974, the State enacted House Committee Substitute for House Bill No. 1211, which imposed new regulations on abortions during all stages of pregnancy. Among other things, the 1974 Act defined "viability," § 2(2); required the written consent of the woman prior to an abortion during the first 12 weeks of pregnancy, § 3(2); required the written consent of the woman's spouse prior to an elective abortion during the first 12 weeks of pregnancy, § 3(3); required the written consent of one parent if the woman was under 18 and unmarried prior to an elective abortion during the first 12 weeks of pregnancy, § 3(4); required a physician performing an abortion to exercise professional care to "preserve the life and health of the fetus" regardless of the stage of pregnancy and, if he should fail that duty, deemed him guilty of manslaughter and made him liable for damages, § 6(1); prohibited the use of saline amniocentesis, as a method of abortion, after the first 12 weeks of pregnancy, § 9; and required certain record-keeping for health facilities and physicians performing abortions, §§ 10, 11. In Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976), the Court upheld the definition of viability, id., at 63-65, the consent provision in § 3(2), id., at 65-67, and the recordkeeping requirements. Id., at 79-81. It struck down the spousal consent provision, id., at 67-72, the parental consent provision, id., at 72-75, the prohibition on abortions by amniocentesis, id., at 75-79, and the requirement that physicians exercise professional care to preserve the life of the fetus regardless of the stage of pregnancy. Id., at 81-84.
In 1979, Missouri passed legislation that, inter alia, required abortions after 12 weeks to be performed in a hospital, Mo. Rev. Stat. § 188.025 (Supp. 1979); required a pathology report for each abortion performed, § 188.047; required the presence of a second physician during abortions performed after viability, § 188.030.3; and required minors to secure parental consent or consent from the juvenile court for an abortion, § 188.028. In Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476 (1983), the Court struck down the second-trimester hospitalization requirement, id., at 481-482, but upheld the other provisions described above. Id., at 494.
"1. The general assembly of this state finds that:
"(1) The life of each human being begins at conception;
"(2) Unborn children have protectable interests in life, health, and well-being;
"(3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.
"2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.
"3. As used in this section, the term `unborn children' or `unborn child' shall include all unborn child [sic] or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.
"4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care."
In my view, a State may not expand indefinitely the scope of its abortion regulations by creating interests in fetal life that are limited solely by reference to the decisional law of this Court. Such a statutory scheme, whose scope is dependent on the uncertain and disputed limits of our holdings, will have the unconstitutional effect of chilling the exercise of a woman's right to terminate a pregnancy and of burdening the freedom of health professionals to provide abortion services. In this case, moreover, because the preamble defines fetal life as beginning upon "the fertilization of the ovum of a female by a sperm of a male," § 188.015(3), the provision also unconstitutionally burdens the use of contraceptive devices, such as the IUD and the "morning after" pill, which may operate to prevent pregnancy only after conception as defined in the statute. See Brief for Association of Reproductive Health Professionals et al. as Amici Curiae 30-39.
The Court upholds §§ 188.210 and 188.215 on the ground that the constitutionality of these provisions follows from our holdings in Maher v. Roe, 432 U.S. 464 (1977), Poelker v. Doe, 432 U.S. 519 (1977), and Harris v. McRae, 448 U.S. 297 (1980). There were strong dissents in all those cases.
Whatever one may think of Maher, Poelker, and Harris, however, they most certainly do not control this case, where the State not only has withdrawn from the business of abortion, but has taken affirmative steps to assure that abortions are not performed by private physicians in private institutions. Specifically, by defining "public facility" as "any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivisions thereof," § 188.200, the Missouri statute prohibits the performance of abortions in institutions that in all pertinent respects are private, yet are located on property owned, leased, or controlled by the government. Thus, under the statute, no abortion may be performed at Truman Medical Center in Kansas City — where, in 1985, 97 percent of all Missouri hospital abortions at 16 weeks or later were performed — even though the Center is a private hospital, staffed primarily by private doctors, and administered by a private corporation: the Center is located on ground leased from a political subdivision of the State.
The sweeping scope of Missouri's "public facility" provision sharply distinguishes this case from Maher, Poelker, and Harris. In one of those cases, it was said: "The State may have made childbirth a more attractive alternative . . . but it . . . imposed no restriction on access to abortions that was not already there." Maher, 432 U. S., at 474. Missouri's public facility ban, by contrast, goes far beyond merely offering incentives in favor of childbirth (as in Maher and Harris), or a straightforward disassociation of state-owned institutions and personnel from abortion services (as in Poelker). Here, by defining as "public" every health-care institution with some connection to the State, no matter how attenuated, Missouri has brought to bear the full force of its economic power and control over essential facilities to discourage its citizens from exercising their constitutional rights, even where the State itself could never be understood as authorizing, supporting, or having any other positive association with the performance of an abortion. See R. Dworkin, The Great Abortion Case, New York Review of Books, June 29, 1989, p. 49.
The difference is critical. Even if the State may decline to subsidize or to participate in the exercise of a woman's right to terminate a pregnancy, and even if a State may pursue its own abortion policies in distributing public benefits, it may not affirmatively constrict the availability of abortions by defining as "public" that which in all meaningful respects is private. With the certain knowledge that a substantial percentage of private health-care providers will fall under the public facility ban, see Brief for National Association of Public Hospitals as Amicus Curiae 10-11, Missouri does not "leav[e] a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all," ante, at 509; rather, the public facility ban leaves the pregnant woman with far fewer choices, or, for those too sick or too poor to travel, perhaps no choice at all. This aggressive and shameful infringement on the right of women to obtain abortions in consultation with their chosen physicians, unsupported by any state interest, much less a compelling one, violates the command of Roe.
Indeed, JUSTICE O'CONNOR appears to recognize the constitutional difficulties presented by Missouri's "public facilities" ban, and rejects respondents' "facial" challenge to the provisions on the ground that a facial challenge cannot succeed where, as here, at least some applications of the challenged law are constitutional. Ante, at 523-524. While I disagree with this approach, JUSTICE O'CONNOR'S writing explicitly leaves open the possibility that some applications of the public facilities" ban may be unconstitutional, regardless of Maher, Poelker, and Harris.
I concur in Part II-C of the Court's opinion, holding that respondents' challenge to § 188.205 is moot, although I note that the constitutionality of this provision might become the subject of relitigation between these parties should the Supreme Court of Missouri adopt an interpretation of the provision that differs from the one accepted here. See Deakins v. Monaghan, 484 U.S. 193, 201, n. 5 (1988).
I also see no conflict with the Court's holding in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), that the State may not impose "a heavy, and unnecessary, burden on women's access to a relatively inexpensive, otherwise accessible, and safe abortion procedure." Id., at 438 (emphasis added). In Akron, we invalidated a city ordinance requiring that all second-trimester abortions be performed in acute-care hospitals on the ground that such a requirement was not medically necessary and would double the cost of abortions. Id., at 434-439. By contrast, the viability determination at issue in this case (as read by the plurality), is necessary to the effectuation of the State's compelling interest in the potential human life of viable fetuses and applies not to all second-trimester abortions, but instead only to that small percentage of abortions performed on fetuses estimated to be of more than 20 weeks gestational age.
JUSTICE SCALIA candidly argues that this is all for the best. Ante, at 532. I cannot agree. "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property . . . may not be submitted to vote; they depend on the outcome of no elections." West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943). In a Nation that cherishes liberty, the ability of a woman to control the biological operation of her body and to determine with her responsible physician whether or not to carry a fetus to term must fall within that limited sphere of individual autonomy that lies beyond the will or the power of any transient majority. This Court stands as the ultimate guarantor of that zone of privacy, regardless of the bitter disputes to which our decisions may give rise. In Roe, and our numerous cases reaffirming Roe, we did no more than discharge our constitutional duty.
Moreover, as Justice Powell wrote for the Court in Akron: "There are especially compelling reasons for adhering to stare decisis in applying the principles of Roe v. Wade. That case was considered with special care. It was first argued during the 1971 Term, and reargued — with extensive briefing — the following Term. The decision was joined by THE CHIEF JUSTICE and six other Justices. Since Roe was decided in January 1973, the Court repeatedly and consistently has accepted and applied the basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy." 462 U. S., at 420, n. 1. See, e. g., Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 428 U.S. 132 (1976); Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Colautti v. Franklin, 439 U.S. 379 (1979); Bellotti v. Baird, 443 U.S. 622 (1979); Harris v. McRae, 448 U.S. 297 (1980); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).
"188.029. Physician, determination of viability, duties
"Before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viability in the medical record of the mother." Mo. Rev. Stat. § 188.029 (1986).
" `If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.'
"The State . . . , no less than the Congress of the United States, must respect that basic truth." Wallace v. Jaffree, 472 U.S. 38, 52-55 (1985) (footnotes omitted).