parenthood of central mis- souri v. danforth, attorney

OCTOBER TERM, 1975

Syllabus 428 U. S.

PLANNED PARENTHOOD OF CENTRAL MIS-SOURI ET AL. v. DANFORTH, ATTORNEY

GENERAL OF MISSOURI, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MISSOURI

No. 74-1151. Argued March 23, 1976-Decided July 1, 1976*

Two Missouri-licensed physicians, one of whom performs abortionsat hospitals and the other of whom supervises abortions at PlannedParenthood, a not-for-profit corporation, brought suit, along withthat organization, for injunctive and declaratory relief challeng-ing the constitutionality of the Missouri abortion statute. Theprovisions under attack are: § 2 (2), defining "viability" as "thatstage of fetal development when the life of the unborn childmay be continued indefinitely outside the womb by natural orartificial life-supportive systems"; § 3 (2), requiring that beforesubmitting to an abortion during the first 12 weeks of preg-nancy a woman must consent in writing to the procedureand certify that "her consent is informed and freely givenand is not the result of coercion"; § 3 (3), requiring, forthe same period, the written consent of the spouse of a womanseeking an abortion unless a licensed physician certifies that theabortion is necessary to preserve the mother's life; § 3 (4), re-quiring, for the same period, and with the same proviso, thewritten consent of a parent or person in loco parentis to theabortion of an unmarried woman under age 18; § 6 (1), requir-ing the physician to exercise professional care to preserve thefetus' life and health, failing which he is deemed guilty of man-slaughter and is liable in an action for damages; § 7, declaring aninfant who survives an attempted abortion not performed to savethe mother's life or health an abandoned ward of the State, anddepriving the mother and a consenting father of parental rights;§ 9, prohibiting after the first 12 weeks of pregnancy the abortionprocedure of saline amniocentesis as "deleterious to maternalhealth"; and §§ 10 and 11, prescribing reporting and recordkeeping

*Together with No. 74-1419, Danforth, Attorney General of

Missouri v. Planned Parenthood of Central Missouri et al., alsoon appeal from the same court.

PLANNED PARENTHOOD OF MISSOURI v. DANFORTH 53

52 Syllabus

requirements for health facilities and physicians performing abor-tions. The District Court ruled that the two physicians had "ob-vious standing" to maintain the suit and that it was thereforeunnecessary to determine if Planned Parenthood also had stand-ing. On the merits, the court upheld the foregoing provisions withthe exception of § 6 (1)'s professional-skill requirement, whichwas held to be "unconstitutionally overbroad" because it failed toexclude the pregnancy stage prior to viability. Held:

1. The physician-appellants have standing to challenge the fore-going provisions of the Act with the exception of § 7, the consti-tutionality of which the Court declines to decide. Doe v. Bolton,410 U. S. 179. P. 62, and n. 2.

2. The definition of viability in § 2 (2) does not conflict with thedefinition in Roe v. Wade, 410 U. S. 113, 160, 163, as thepoint at which the fetus is "potentially able to live outsidethe mother's womb, albeit with artificial aid," and is presumablycapable of "meaningful life outside the mother's womb." Section2 (2) maintains the flexibility of the term "viability" recognizedin Roe. It is not a proper legislative or judicial function to fixviability, which is essentially for the judgment of the responsibleattending physician, at a specific point in the gestation period.Pp. 63-65.

3. The consent provision in § 3 (2) is not unconstitutional.The decision to abort is important and often stressful, and theawareness of the decision and its significance may be constitu-tionally assured by the State to the extent of requiring thewoman's prior written consent. Pp. 65-67.

4. The spousal consent provision in § 3 (3), which does notcomport with the standards enunciated in Roe v. Wade, supra,at 164-165, is unconstitutional, since the State cannot "'delegateto a spouse a veto power which the [S]tate itself is absolutelyand totally prohibited from exercising during the first trimesterof pregnancy.'" Pp. 67-72.

5. The State may not constitutionally impose a blanketparental consent requirement, such as § 3 (4), as a condition foran unmarried minor's abortion during the first 12 weeks of herpregnancy for substantially the same reasons as in the case of thespousal consent provision, there being no significant state inter-ests, whether to safeguard the family unit and parental authorityor otherwise, in conditioning an abortion on the consent of aparent with respect to the under-I8-year-old pregnant minor.As stressed in Roe, "the abortion decision and its effectuation must

OCTOBER TERM, 1975

Syllabus 428 U. S.

be left to the medical judgment of the pregnant woman's attendingphysician." 410 U. S., at 164. Pp. 72-75.

6. Through § 9 the State would prohibit the most commonlyused abortion procedure in the country and one that is safer,with respect to maternal mortality, than even the continuationof pregnancy until normal childbirth and would force pregnancyterminations by methods more dangerous to the woman's healththan the method outlawed. As so viewed (particularly since an-other safe technique, prostaglandin, is not yet available) theoutright legislative proscription of saline amniocentesis fails as areasonable protection of maternal health. As an arbitrary regula-tion designed to prevent the vast majority of abortions after thefirst 12 weeks, it is plainly unconstitutional. Pp. 75-79.

7. The reporting and recordkeeping requirements, which can beuseful to the State's interest in protecting the health of its femalecitizens and which may be of medical value, are not constitu-tionally offensive in themselves, particularly in view of reasonableconfidentiality and retention provisions. They thus do notinterfere with the abortion decision or the physician-patient re-lationship. It is assumed that the provisions will not be ad-ministered in an unduly burdensome way and that patients willnot be required to execute spousal or parental consent forms inaccordance with invalid provisions of the Act. Pp. 79-81.

8. The first sentence of § 6 (1) impermissibly requires aphysician to preserve the fetus' life and health, whatever thestage of pregnancy. The second sentence, which provides forcriminal and civil liability where a physician fails "to take suchmeasures to encourage or to sustain the life of the child, and thedeath of the child results," does not alter the duty imposed bythe first sentence or limit that duty to pregnancies that havereached the stage of viability, and since it is inseparably tied tothe first provision, the whole section is invalid. Pp. 81-84.

392 F. Supp. 1362, affirmed in part, reversed in part, and remanded.

BLACKMUN, J., delivered the opinion of the Court, in whichBRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined, in allbut Parts IV-D and IV-E of which STEVENS, J., joined, and inall but Parts IV-C, IV-D, IV-E, and IV-G of which BURGER, C. J.,and WHITE and REHNQUIST, JJ., joined. STEWART, J., filed a con-curring opinion, in which POWELL, J., joined, post, p. 89. WHITE, J.,

filed an opinion concurring in part and dissenting in part, in whichBURGER, C. J., and REHNQUIST, J., joined, post, p. 92. STEVENS, J.,


52 Opinion of the Court

filed an opinion concurring in part and dissenting in part, post, p.101.

Frank Susman argued the cause for appellants in No.

74-1151 and for appellees in No. 74-1419. With him on

the brief was Judith Mears.

John C. Danforth, pro se, Attorney General of Mis-souri, argued the cause for appellees in No. 74-1151 and

for appellant in No. 74-1419. With him on the brief

were D. Brook Bartlett, First Assistant Attorney Gen-

eral, and Karen M. Iverson and Christopher R. Brewster,Assistant Attorneys General.t

MR. JUSTICE BLACKMUN delivered the opinion of theCourt.

This case is a logical and anticipated corollary toRoe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton,410 U. S. 179 (1973), for it raises issues secondary tothose that were then before the Court. Indeed, someof the questions now presented were forecast and re-served in Roe and Doe. 410 U. S., at 165 n. 67.

I

After the decisions in Roe and Doe, this Court re-manded for reconsideration a pending Missouri federalcase in which the State's then-existing abortion legisla-

tRhonda Copelon and Nancy Stearns filed a brief in both casesfor the Center for Constitutional Rights et al. as amici curiaeurging reversal in No. 74-1151.

Briefs of amici curiae were filed in both cases by EugeneKrasicky, George E. Reed, and Patrick F. Geary for the UnitedStates Catholic Conference; and by Harriet F. Pilpel for PlannedParenthood Federation of America, Inc., et al. Briefs of amicicuriae were filed in No. 74-1151 by John J. Donnelly for Lawyersfor Life, Inc., et al., and by Jerome M. McLaughlin for MissouriNurses for Life.

OCTOBER TERM, 1975

Opinion of the Court 428 U. S.

tion, Mo. Rev. Stat. §§ 559.100, 542.380, and 563.300(1969), was under constitutional challenge. Rodgers v.Danforth, 410 U. S. 949 (1973). A three-judge federalcourt for the Western District of Missouri, in an unre-ported decision, thereafter declared the challenged Mis-souri statutes unconstitutional and granted injunctiverelief. On appeal here, that judgment was summarilyaffirmed. Danforth v. Rodgers, 414 U. S. 1035 (1973).

In June 1974, somewhat more than a year after Roeand Doe had been decided, Missouri's 77th GeneralAssembly, in its Second Regular Session, enacted HouseCommittee Substitute for House Bill No. 1211 (here-inafter Act). The legislation was approved by the Gov-ernor on June 14, 1974, and became effective immediatelyby reason of an emergency clause contained in § A of thestatute. The Act is set forth in full as the Appendix tothis opinion. It imposes a structure for the control andregulation of abortions in Missouri during all stages ofpregnancy.

II

Three days after the Act became effective, the presentlitigation was instituted in the United States DistrictCourt for the Eastern District of Missouri. The plain-tiffs are Planned Parenthood of Central Missouri, a not-for-profit Missouri corporation which maintains a facilityin Columbia, Mo., for the performance of abortions;David Hall, M. D.; and Michael Freiman, M. D. Doc-tor Hall is a resident of Columbia, is licensed as a phy-sician in Missouri, is chairman of the Department andProfessor of Obstetrics and Gynecology at the Universityof Missouri Medical School at Columbia, and supervisesabortions at the Planned Parenthood facility. He wasdescribed by the three-judge court in the 1973 case asone of four plaintiffs who were "eminent, Missouri-licensed obstetricians and gynecologists." Jurisdictional



Statement, App. A7, in Danforth v. Rodgers, No. 73-426,0. T. 1973. Doctor Freiman is a resident of St. Louis,is licensed as a physician in Missouri, is an instructor ofClinical Obstetrics and Gynecology at Washington Uni-versity Medical School, and performs abortions at twoSt. Louis hospitals and at a clinic in that city.

The named defendants are the Attorney General ofMissouri and the Circuit Attorney of the city of St.Louis "in his representative capacity" and "as the repre-sentative of the class of all similar Prosecuting Attorneysof the various counties of the State of Missouri." Com-plaint 10.

The plaintiffs brought the action on their own behalfand, purportedly, "on behalf of the entire class consist-ing of duly licensed physicians and surgeons presentlyperforming or desiring to perform the termination ofpregnancies and on behalf of the entire class consistingof their patients desiring the termination of pregnancy,all within the State of Missouri." Id., at 9. Plaintiffssought declaratory relief and also sought to enjoin en-forcement of the Act on the ground, among others, thatcertain of its provisions deprived them and their patientsof various constitutional rights: "the right to privacyin the physician-patient relationship"; the physicians'"right to practice medicine according to the higheststandards of medical practice"; the female patients'right to determine whether to bear children; the patients'"right to life due to the inherent risk involved in child-birth" or in medical procedures alternative to abortion;the physicians' "right to give and plaintiffs' patients'right to receive safe and adequate medical advice andtreatment, pertaining to the decision of whether to carrya given pregnancy to term and the method of termina-tion"; the patients' right under the Eighth Amendmentto be free from cruel and unusual punishment "by forcing

OCTOBER TERM, 1975


and coercing them to bear each pregnancy they con-ceive"; and, by being placed "in the position of decisionmaking beset with ... inherent possibilities of bias andconflict of interest," the physician's right to due processof law guaranteed by the Fourteenth Amendment. Id.,at 10-11.

The particular provisions of the Act that remainedunder specific challenge at the end of trial were § 2 (2),defining the term "viability"; § 3 (2), requiring from thewoman, prior to submitting to abortion during the first12 weeks of pregnancy, a certification in writing that sheconsents to the procedure and "that her consent is in-formed and freely given and is not the result of coer-cion"; § 3 (3), requiring, for the same period, "the writ-ten consent of the woman's spouse, unless the abortionis certified by a licensed physician to be necessary inorder to preserve the life of the mother"; § 3 (4), requir-ing, for the same period, "the written consent of oneparent or person in loco parentis of the woman if thewoman is unmarried and under the age of eighteen years,unless the abortion is certified by a licensed physicianas necessary in order to preserve the life of the mother";§ 6 (1), requiring the physician to exercise professionalcare "to preserve the life and health of the fetus" and,failing such, deeming him guilty of manslaughter andmaking him liable in an action for damages; § 7, declar-ing an infant, who survives "an attempted abortion whichwas not performed to save the life or health of themother," to be "an abandoned ward of the state underthe jurisdiction of the juvenile court," and depriving themother, and also the father if he consented to the abor-tion, of parental rights; § 9, the legislative finding thatthe method of abortion known as saline amniocentesis "isdeleterious to maternal health," and prohibiting thatmethod after the first 12 weeks of pregnancy; and §§ 10



and 11, imposing reporting and maintenance of recordrequirements for health facilities and for physicians whoperform abortions.

The case was presented to a three-judge District Courtconvened pursuant to the provisions of 28 U. S. C.§§ 2281 and 2284. 392 F. Supp. 1362 (1975). The courtruled that the two physician-plaintiffs had standing inas-much as § 6 (1) provides that the physician who fails toexercise the prescribed standard of professional care duethe fetus in the abortion procedure shall be guilty ofmanslaughter, and § 14 provides that any person whoperforms or aids in the performance of an abortion con-trary to the provisions of the Act shall be guilty of a mis-demeanor. 392 F. Supp., at 1366-1367. Due to this"obvious standing" of the two physicians, id., at 1367,the court deemed it unnecessary to determine whetherPlanned Parenthood also had standing.

On the issues as to the constitutionality of the severalchallenged sections of the Act, the District Court, largelyby a divided vote, ruled that all except the first sentenceof § 6 (1) withstood the attack. That sentence was heldto be constitutionally impermissible because it imposedupon the physician the duty to exercise at all stages ofpregnancy "that degree of professional skill, care anddiligence to preserve the life and health of the fetus"that "would be required . . . to preserve the life andhealth of any fetus intended to be born." Inasmuch asthis failed to exclude the stage of pregnancy prior toviability, the provision was "unconstitutionally over-broad." 392 F. Supp., at 1371.

One judge concurred in part and dissented in part.Id., at 1374. He agreed with the majority as to theconstitutionality of §§ 2 (2), 3 (2), 10, and 11, respec-tively relating to the definition of "viability," thewoman's prior written consent, maintenance of records,

OCTOBER TERM, 1975


and retention of records. He also agreed with the ma-jority that § 6 (1) was unconstitutionally overbroad. Hedissented from the majority opinion upholding the con-stitutionality of §§ 3 (3), 3 (4), 7, and 9, relating, respec-tively, to spousal consent, parental consent, the termina-tion of parental rights, and the proscription of salineamniocentesis.

In No. 74-1151, the plaintiffs appeal from that partof the District Court's judgment upholding sections ofthe Act as constitutional and denying injunctive reliefagainst their application and enforcement. In No. 74-1419, the defendant Attorney General cross-appeals fromthat part of the judgment holding § 6 (1) unconstitu-tional and enjoining enforcement thereof. We grantedthe plaintiffs' application for stay of enforcement of theAct pending appeal. 420 U. S. 918 (1975). Probablejurisdiction of both appeals thereafter was noted. 423U. S. 819 (1975).

For convenience, we shall usually refer to the plaintiffsas "appellants" and to both named defendants as"appellees."

III

In Roe v. Wade the Court concluded that the "rightof privacy, whether it be founded in the FourteenthAmendment's concept of personal liberty and restrictionsupon state action, as we feel it is, or, as the District Courtdetermined, in the Ninth Amendment's reservation ofrights to the people, is broad enough to encompass awoman's decision whether or not to terminate her preg-nancy." 410 U. S., at 153. It emphatically rejected,however, the proffered argument "that the woman'sright is absolute and that she is entitled to terminateher pregnancy at whatever time, in whatever way, andfor whatever reason she alone chooses." Ibid. Instead,



this right "must be considered against important stateinterests in regulation." Id., at 154.

The Court went on to say that the "pregnant womancannot be isolated in her privacy," for she "carries an em-bryo and, later, a fetus." Id., at 159. It was therefore"reasonable and appropriate for a State to decide that atsome point in time another interest, that of health ofthe mother or that of potential human life, becomes sig-nificantly involved. The woman's privacy is no longersole and any right of privacy she possesses must bemeasured accordingly." Ibid. The Court stressed themeasure of the State's interest in "the light of presentmedical knowledge." Id., at 163. It concluded that thepermissibility of state regulation was to be viewed inthree stages: "For the stage prior to approximately theend of the first trimester, the abortion decision and itseffectuation must be left to the medical judgment ofthe pregnant woman's attending physician," without in-terference from the State. Id., at 164. The participa-tion by the attending physician in the abortion decision,and his responsibility in that decision, thus, were empha-sized. After the first stage, as so described, the Statemay, if it chooses, reasonably regulate the abortion pro-cedure to preserve and protect maternal health. Ibid.Finally, for the stage subsequent to viability, a pointpurposefully left flexible for professional determination,and dependent upon developing medical skill and tech-nical ability,' the State may regulate an abortion toprotect the life of the fetus and even may proscribe abor-tion except where it is necessary, in appropriate medicaljudgment, for the preservation of the life or health of themother. Id., at 163-165.

1 "Viability is usually placed at about seven months (28 weeks)but may occur earlier, even at 24 weeks." Roe v. Wade, 410 U. S.,at 160.

OCTOBER TERM, 1975


IVWith the exception specified in n. 2, infra, we agree

with the District Court that the physician-appellantsclearly have standing. This was established in Doe v.Bolton, 410 U. S., at 188. Like the Georgia statuteschallenged in that case, "[t]he physician is the oneagainst whom [the Missouri Act] directly operate[s]in the event he procures an abortion that does not meetthe statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat ofpersonal detriment. They should not be required toawait and undergo a criminal prosecution as the solemeans of seeking relief." 2 Ibid.

Our primary task, then, is to consider each of the

2 This is not so, however, with respect to § 7 of the Act pertain-ing to state wardship of a live-born infant. Section 7 applies"where a live born infant results from an attempted abortion whichwas not performed to save the life or health of the mother." Itthen provides that the infant "shall be an abandoned ward of thestate" and that the mother-and the father, too, if he consentedto the abortion--"shall have no parental rights or obligations what-soever relating to such infant."

The physician-appellants do not contend that this section of theAct imposes any obligation on them or that its operation otherwiseinjures them in fact. They do not claim any interest in the ques-tion of who receives custody that is "sufficiently concrete" to satisfythe "case or controversy" requirement of a federal court's Art. IIIjurisdiction. Singleton v. Wulff, post, at 112. Accordingly, thephysician-appellants do not have standing to challenge § 7 ofthe Act.

The District Court did not decide whether Planned Parenthoodhas standing to challenge the Act, or any portion of it, because ofits view that the physician-appellants have standing to challengethe entire Act. 392 F. Supp. 1362, 1366-1367 (1975). We decline toconsider here the standing of Planned Parenthood to attack § 7.That question appropriately may be left to the District Courtfor reconsideration on remand. As a consequence, we do notdecide the issue of § 7's constitutionality.



challenged provisions of the new Missouri abortion stat-ute in the particular light of the opinions and decisionsin Roe and in Doe. To this we now turn, with the assist-ance of helpful briefs from both sides and from some ofthe amici.

A

The definition of viability. Section 2 (2) of the Actdefines "viability" as "that stage of fetal developmentwhen the life of the unborn child may be continued in-definitely outside the womb by natural or artificial life-supportive systems." Appellants claim that this defi-nition violates and conflicts with the discussion ofviability in our opinion in Roe. 410 U. S., at 160, 163.In particular, appellants object to the failure of the defi-nition to contain any reference to a gestational time pe-riod, to its failure to incorporate and reflect the threestages of pregnancy, to the presence of the word "indefi-nitely," and to the extra burden of regulation imposed.It is suggested that the definition expands the Court'sdefinition of viability, as expressed in Roe, and amountsto a legislative determination of what is properly a mat-ter for medical judgment. It is said that the "merepossibility of momentary survival is not the medicalstandard of viability." Brief for Appellants 67.

In Roe, we used the term "viable," properly wethought, to signify the point at which the fetus is "po-tentially able to live outside the mother's womb, albeitwith artificial aid," and presumably capable of "mean-ingful life outside the mother's womb," 410 U. S., at 160,163. We noted that this point "is usually placed" atabout seven months or 28 weeks, but may occur earlier.Id., at 160.

We agree with the District Court and conclude that thedefinition of viability in the Act does not conflict withwhat was said and held in Roe. In fact, we believe that

OCTOBER TERM, 1975


§ 2 (2), even when read in conjunction with § 5 (proscrib-ing an abortion "not necessary to preserve the life orhealth of the mother .. unless the attending physicianfirst certifies with reasonable medical certainty that thefetus is not viable"), the constitutionality of which isnot explicitly challenged here, reflects an attempt on thepart of the Missouri General Assembly to comply withour observations and discussion in Roe relating to via-bility. Appellant Hall, in his deposition, had no par-ticular difficulty with the statutory definition.' As notedabove, we recognized in Roe that viability was a matterof medical judgment, skill, and technical ability, and wepreserved the flexibility of the term. Section 2 (2) doesthe same. Indeed, one might argue, as the appellees do,that the presence of the statute's words "continued in-definitely" favor, rather than disfavor, the appellants, for,arguably, the point when life can be "continued indefi-nitely outside the womb" may well occur later in preg-nancy than the point where the fetus is "potentially ableto live outside the mother's womb." Roe v. Wade, 410U. S., at 160.

In any event, we agree with the District Court thatit is not the proper function of the legislature or thecourts to place viability, which essentially is a medicalconcept, at a specific point in the gestation period. Thetime when viability is achieved may vary with eachpregnancy, and the determination of whether a particu-lar fetus is viable is, and must be, a matter for the judg-ment of the responsible attending physician. The defi-nition of viability in § 2 (2) merely reflects this fact.The appellees do not contend otherwise, for they insist

3"[A]ithough I agree with the definition of 'viability,' I think

that it must be understood that viability is a very difficult stateto assess." Tr. 369.



that the determination of viability rests with the physi-cian in the exercise of his professional judgment.'

We thus do not accept appellants' contention that aspecified number of weeks in pregnancy must be fixed bystatute as the point of viability. See Wolfe v. Schroer-ing, 388 F. Supp. 631, 637 (WD Ky. 1974); Hodgson v.Anderson, 378 F. Supp. 1008, 1016 (Minn. 1974), dis-missed for want of jurisdiction sub nom. Spannaus v.Hodgson, 420 U. S. 903 (1975).'

We conclude that the definition in § 2 (2) of the Actdoes not circumvent the limitations on state regulationoutlined in Roe. We therefore hold that the Act's defi-nition of "viability" comports with Roe and withstandsthe constitutional attack made upon it in this litigation.

B

The woman's consent. Under § 3 (2) of the Act, awoman, prior to submitting to an abortion during thefirst 12 weeks of pregnancy, must certify in writing herconsent to the procedure and "that her consent is in-formed and freely given and is not the result of coercion."Appellants argue that this requirement is violative of

4 "The determination of when the fetus is viable rests, as it should,with the physician, in the exercise of his medical judgment, on acase-by-case basis." Brief for Appellee Danforth 26. "Becauseviability may vary from patient to patient and with advancementsin medical technology, it is essential that physicians make thedetermination in the exercise of their medical judgment." Id., at28. "Defendant agrees that 'viability' will vary, that it is a difficultstate to assess . . . and that it must be left to the physician'sjudgment." Id., at 29.

The Minnesota statute under attack in Hodgson provided thata fetus "shall be considered potentially 'viable' " during the secondhalf of its gestation period. Noting that the defendants had pre-sented no evidence of viability at 20 weeks, the three-judge DistrictCourt held that that definition of viability was "unreasonable andcannot stand." 378 F. Supp., at 1016.

OCTOBER TERM, 1975


Roe v. Wade, 410 U. S., at 164-165, by imposing anextra layer and burden of regulation on the abortiondecision. See Doe v. Bolton, 410 U. S., at 195-200.Appellants also claim that the provision is overbroadand vague.

The District Court's majority relied on the proposi-tions that the decision to terminate a pregnancy, ofcourse, "is often a stressful one," and that the consentrequirement of § 3 (2) "insures that the pregnant womanretains control over the discretions of her consultingphysician." 392 F. Supp., at 1368, 1369. The majorityalso felt that the consent requirement "does not singleout the abortion procedure, but merely includes it withinthe category of medical operations for which consent isrequired." I Id., at 1369. The third judge joined themajority in upholding § 3 (2), but added that the writ-ten consent requirement was "not burdensome or chill-ing" and manifested "a legitimate interest of the statethat this important decision has in fact been made bythe person constitutionally empowered to do so." 392F. Supp., at 1374. He went on to observe that therequirement "in no way interposes the state or thirdparties in the decision-making process." Id., at 1375.

We do not disagree with the result reached by theDistrict Court as to § 3 (2). It is true that Doe andRoe clearly establish that the State may not restrict thedecision of the patient and her physician regarding abor-tion during the first stage of pregnancy. Despite thefact that apparently no other Missouri statute, withthe exceptions referred to in n. 6, supra, requires a

6 Apparently, however, the only other Missouri statutes concernedwith consent for general medical or surgical care relate to personscommitted to the Missouri State chest hospital, Mo. Rev. Stat.§ 199.240 (Supp. 1975), or to mental or correctional institutions,§ 105.700 (1969).



patient's prior written consent to a surgical procedure,the imposition by § 3 (2) of such a requirement for ter-mination of pregnancy even during the first stage, in ourview, is not in itself an unconstitutional requirement.The decision to abort, indeed, is an important, and oftena stressful one, and it is desirable and imperative thatit be made with full knowledge of its nature and conse-quences. The woman is the one primarily concerned,and her awareness of the decision and its significancemay be assured, constitutionally, by the State to theextent of requiring her prior written consent.

We could not say that a requirement imposed bythe State that a prior written consent for any surgerywould be unconstitutional. As a consequence, we seeno constitutional defect in requiring it only for sometypes of surgery as, for example, an intracardiac proce-dure, or where the surgical risk is elevated above a speci-fied mortality level, or, for that matter, for abortions.8

CThe spouse's consent. Section 3 (3) requires the prior

written consent of the spouse of the woman seeking anabortion during the first 12 weeks of pregnancy, unless

7 There is some testimony in the record to the effect that taking fromthe patient a prior written consent to surgery is the custom. Thatmay be so in some areas of Missouri, but we definitely refrain fromcharacterizing it extremely as "the universal practice of the medicalprofession," as the appellees do. Brief for Appellee Danforth 32.

8 The appellants' vagueness argument centers on the word "in-formed." One might well wonder, offhand, just what "informedconsent" of a patient is. The three Missouri federal judges whocomposed the three-judge District Court, however, were not con-cerned, and we are content to accept, as the meaning, the giving ofinformation to the patient as to just what would be done and as toits consequences. To ascribe more meaning than this might wellconfine the attending physician in an undesired and uncomfortablestraitjacket in the practice of his profession.

OCTOBER TERM, 1975


"the abortion is certified by a licensed physician to benecessary in order to preserve the life of the mother." '

The appellees defend § 3 (3) on the ground that it wasenacted in the light of the General Assembly's "percep-tion of marriage as an institution," Brief for AppelleeDanforth 34, and that any major change in family statusis a decision to be made jointly by the marriage partners.Reference is made to an abortion's possible effect on thewoman's childbearing potential. It is said that marriagealways has entailed some legislatively imposed limita-tions: Reference is made to adultery and bigamy ascriminal offenses; to Missouri's general requirement, Mo.Rev. Stat. § 453.030.3 (1969), that for an adoption of achild born in wedlock the consent of both parents isnecessary; to similar joint-consent requirements imposedby a number of States with respect to artificial insemina-tion and the legitimacy of children so conceived; to thelaws of two States requiring spousal consent for volun-tary sterilization; and to the long-established require-ment of spousal consent for the effective disposition ofan interest in real property. It is argued that "[r]ec-ognizing that the consent of both parties is generally nec-essary ...to begin a family, the legislature has deter-mined that a change in the family structure set in motionby mutual consent should be terminated only by mutualconsent," Brief for Appellee Danforth 38, and that whatthe legislature did was to exercise its inherent policy-making power "for what was believed to be in the bestinterests of all the people of Missouri." Id., at 40.

The appellants, on the other hand, contend that § 3 (3)obviously is designed to afford the husband the rightunilaterally to prevent or veto an abortion, whether or

9 It is of some interest to note that the condition does not relate,as most statutory conditions in this area do, to the preservation ofthe life or health of the mother.



not he is the father of the fetus, and that this not onlyviolates Roe and Doe but is also in conflict with otherdecided cases. See, e. g., Poe v. Gerstein, 517 F. 2d 787,794-796 (CA5 1975), appeal docketed, No. 75-713;TVolfe v. Schroering, 388 F. Supp., at 636-637; Doe v.Rampton, 366 F. Supp. 189, 193 (Utah 1973). Theyalso refer to the situation where the husband's consentcannot be obtained because he cannot be located. Andthey assert that § 3 (3) is vague and overbroad.

In Roe and Doe we specifically reserved decision onthe question whether a requirement for consent by thefather of the fetus, by the spouse, or by the parents, ora parent, of an unmarried minor, may be constitutionallyimposed. 410 U. S., at 165 n. 67. We now hold thatthe State may not constitutionally require the consentof the spouse, as is specified under § 3 (3) of the MissouriAct, as a condition for abortion during the first 12 weeksof pregnancy. We thus agree with the dissenting judgein the present case, and with the courts whose decisionsare cited above, that the State cannot "delegate to aspouse a veto power which the state itself is absolutelyand totally prohibited from exercising during the firsttrimester of pregnancy." 392 F. Supp., at 1375.Clearly, since the State cannot regulate or proscribe abor-tion during the first stage, when the physician and hispatient make that decision, the State cannot delegate au-thority to any particular person, even the spouse, to pre-vent abortion during that same period.

We are not unaware of the deep and proper concernand interest that a devoted and protective husband hasin his wife's pregnancy and in the growth and develop-ment of the fetus she is carrying. Neither has this Courtfailed to appreciate the importance of the marital rela-tionship in our society. See, e. g., Griswold v. Connecti-cut, 381 U. S. 479, 486 (1965); Maynard v. Hill, 125 U. S.

OCTOBER TERM, 1975


190, 211 (1888).10 Moreover, we recognize that the de-cision whether to undergo or to forgo an abortion mayhave profound effects on the future of any marriage,effects that are both physical and mental, and possiblydeleterious. Notwithstanding these factors, we cannothold that the State has the constitutional authority togive the spouse unilaterally the ability to prohibit thewife from terminating her pregnancy, when the Stateitself lacks that right. See Eisenstadt v. Baird, 405 U. S.438, 453 (1972).11

LO "We deal with a right of privacy older than the Bill of Rights-

older than our political parties, older than our school system. Mar-riage is a coming together for better or for worse, hopefully endur-ing, and intimate to the degree of being sacred. It is an associationthat promotes a way of life, not causes; a harmony in living, not po-litical faiths; a bilateral loyalty, not commercial or social projects.Yet it is an association for as noble a purpose as any involved in ourprior decisions." Griswold v. Connecticut, 381 U. S., at 486.

11 As the Court recognized in Eisenstadt v. Baird, "the marital

couple is not an independent entity with a mind and heart of itsown, but an association of two individuals each with a separateintellectual and emotional makeup. If the right of privacy meansanything, it is the right of the individual, married or single, to befree from unwarranted governmental intrusion into matters sofundamentally affecting a person as the decision whether to bear orbeget a child." 405 U. S., at 453 (emphasis in original).

The dissenting opinion of our Brother WHITE appears to overlookthe implications of this statement upon the issue whether § 3 (3)is constitutional. This section does much more than insure that thehusband participate in the decision whether his wife should have anabortion. The State, instead, has determined that the husband'sinterest in continuing the pregnancy of his wife always outweighsany interest on her part in terminating it irrespective of the con-dition of their marriage. The State, accordingly, has granted himthe right to prevent unilaterally, and for whatever reason, the effec-tuation of his wife's and her physician's decision to terminate herpregnancy. This state determination not only may discourage theconsultation that might normally be expected to precede a majordecision affecting the marital couple but also, and more importantly,



It seems manifest that, ideally, the decision to termi-nate a pregnancy should be one concurred in by both thewife and her husband. No marriage may be viewed asharmonious or successful if the marriage partners are fun-damentally divided on so important and vital an issue.But it is difficult to believe that the goal of fosteringmutuality and trust in a marriage, and of strengtheningthe marital relationship and the marriage institution, willbe achieved by giving the husband a veto power exercis-able for any reason whatsoever or for no reason at all.Even if the State had the ability to delegate to the hus-band a power it itself could not exercise, it is not at alllikely that such action would further, as the DistrictCourt majority phrased it, the "interest of the state inprotecting the mutuality of decisions vital to the mar-riage relationship." 392 F. Supp., at 1370.

We recognize, of course, that when a woman, with theapproval of her physician but without the approval ofher husband, decides to terminate her pregnancy, it couldbe said that she is acting unilaterally. The obvious factis that when the wife and the husband disagree on thisdecision, the view of only one of the two marriage part-ners can prevail. Inasmuch as it is the woman whophysically bears the child and who is the more directlyand immediately affected by the pregnancy, as betweenthe two, the balance weighs in her favor. Cf. Roe v.Wade, 410 U. S., at 153.

We conclude that § 3 (3) of the Missouri Act is incon-sistent with the standards enunciated in Roe v. Wade,410 U. S., at 164-.165, and is unconstitutional. It istherefore unnecessary for us to consider the appellants'

the State has interposed an absolute obstacle to a woman's decisionthat Roe held to be constitutionally protected from suchinterference.

OCTOBER TERM, 1975


additional challenges to § 3 (3) based on vagueness andoverbreadth.

D

Parental Consent. Section 3 (4) requires, with re-spect to the first 12 weeks of pregnancy, where thewoman is unmarried and under the age of 18 years, thewritten consent of a parent or person in loco parentisunless, again, "the abortion is certified by a licensedphysician as necessary in order to preserve the life ofthe mother." It is to be observed that only one parentneed consent.

The appellees defend the statute in several ways.They point out that the law properly may subjectminors to more stringent limitations than are permissiblewith respect to adults, and they cite, among other cases,Prince v. Massachusetts, 321 U. S. 158 (1944), and Mc-Keiver v. Pennsylvania, 403 U. S. 528 (1971). Missourilaw, it is said, "is replete with provisions reflecting the in-terest of the state in assuring the welfare of minors," cit-ing statutes relating to a guardian ad litem for a courtproceeding, to the care of delinquent and neglected chil-dren, to child labor, and to compulsory education. Brieffor Appellee Danforth 42. Certain decisions are consid-ered by the State to be outside the scope of a minor'sability to act in his own best interest or in the interest ofthe public, citing statutes proscribing the sale of firearmsand deadly weapons to minors without parental consent,and other statutes relating to minors' exposure to certaintypes of literature, the purchase by pawnbrokers of prop-erty from minors, a.-d the sale of cigarettes and alcoholicbeverages to minors. It is pointed out that the recordcontains testimony to the effect that children of tenderyears (even ages 10 and 11) have sought abortions.Thus, a State's permitting a child to obtain an abor-tion without the counsel of an adult "who has responsi-



bility or concern for the child would constitute an irre-sponsible abdication of the State's duty to protect thewelfare of minors." Id., at 44. Parental discretion, too,has been protected from unwarranted or unreasonableinterference from the State, citing Meyer v. Nebraska,262 U. S. 390 (1923); Pierce v. Society of Sisters, 268U. S. 510 (1925); Wisconsin v. Yoder, 406 U. S. 205(1972). Finally, it is said that § 3 (4) imposes no addi-tional burden on the physician because even prior to thepassage of the Act the physician would require parentalconsent before performing an abortion on a minor.

The appellants, in their turn, emphasize that no otherMissouri statute specifically requires the additional con-sent of a minor's parent for medical or surgical treat-ment, and that in Missouri a minor legally may consentto medical services for pregnancy (excluding abortion),venereal disease, and drug abuse. Mo. Rev. Stat.§§ 431.061-431.063 (Supp. 1975). The result of § 3 (4),it is said, "is the ultimate supremacy of the parents' de-sires over those of the minor child, the pregnant patient."Brief for Appellants 93. It is noted that in Missouri awoman under the age of 18 who marries with parentalconsent does not require parental consent to abort, andyet her contemporary who has chosen not to marry mustobtain parental approval.

The District Court majority recognized that, in con-trast to § 3 (3), the State's interest in protecting themutuality of a marriage relationship is not present withrespect to § 3 (4). It found "a compelling basis," how-ever, in the State's interest "in safeguarding the authorityof the family relationship." 392 F. Supp., at 1370. Thedissenting judge observed that one could not seriouslyargue that a minor must submit to an abortion if herparents insist, and he could not see "why she would notbe entitled to the same right of self-determination now

OCTOBER TERM, 1975


explicitly accorded to adult women, provided she is suf-ficiently mature to understand the procedure and tomake an intelligent assessment of her circumstances withthe advice of her physician." Id., at 1376.

Of course, much of what has been said above, withrespect to § 3 (3), applies with equal force to § 3 (4).Other courts that have considered the parental-consentissue in the light of Roe and Doe, have concluded thata statute like § 3 (4) does not withstand constitutionalscrutiny. See, e. g., Poe v. Gerstein, 517 F. 2d, at 792;Wolfe v. Schroering, 388 F. Supp., at 636-637; Doe v.Rampton, 366 F. Supp., at 193, 199; State v. Koome, 84Wash. 2d 901, 530 P. 2d 260 (1975).

We agree with appellants and with the courts whosedecisions have just been cited that the State may notimpose a blanket provision, such as § 3 (4), requiring theconsent of a parent or person in loco parentis as a condi-tion for abortion of an unmarried minor during the first12 weeks of her pregnancy. Just as with the require-ment of consent from the spouse, so here, the State doesnot have the constitutional authority to give a thirdparty an absolute, and possibly arbitrary, veto over thedecision of the physician and his patient to terminate thepatient's pregnancy, regardless of the reason for with-holding the consent.

Constitutional rights do not mature and come intobeing magically only when one attains the state-definedage of majority. Minors, as well as adults, are protectedby the Constitution and possess constitutional rights.See, e. g., Breed v. Jones, 421 U. S. 519 (1975); Goss v.Lopez, 419 U. S. 565 (1975); Tinker v. Des MoinesSchool Dist., 393 U. S. 503 (1969); In re Gault, 387U. S. 1 (1967). The Court indeed, however, long hasrecognized that the State has somewhat broader author-ity to regulate the activities of children than of adults.



Prince v. Massachusetts, 321 U. S., at 170; Ginsberg v.New York, 390 U. S. 629 (1968). It remains, then, toexamine whether there is any significant state interestin conditioning an abortion on the consent of a parentor person in loco parentis that is not present in the caseof an adult.

One suggested interest is the safeguarding of the familyunit and of parental authority. 392 F. Supp., at 1370.It is difficult, however, to conclude that providing aparent with absolute power to overrule a determination,made by the physician and his minor patient, to termi-nate the patient's pregnancy will serve to strengthen thefamily unit. Neither is it likely that such veto powerwill enhance parental authority or control where theminor and the nonconsenting parent are so fundamen-tally in conflict and the very existence of the pregnancyalready has fractured the family structure. Any inde-pendent interest the parent may have in the terminationof the minor daughter's pregnancy is no more weightythan the right of privacy of the competent minor matureenough to have become pregnant.

We emphasize that our holding that § 3 (4) is invaliddoes -not suggest that every minor, regardless of age ormaturity, may give effective consent for termination ofher pregnancy. See Bellotti v. Baird, post, p. 132. Thefault with § 3 (4) is that it imposes a special-consentprovision, exercisable by a person other than the womanand her physician, as a prerequisite to a minor's termi-nation of her pregnancy and does so without a sufficientjustification for the restriction. It violates the stricturesof Roe and Doe.

E

Saline amniocentesis. Section 9 of the statute pro-hibits the use of saline amniocentesis, as a method ortechnique of abortion, after the first 12 weeks of preg-

OCTOBER TERM, 1975


nancy. It describes the method as one whereby theamniotic fluid is withdrawn and "a saline or other fluid"is inserted into the amniotic sac. The statute imposesthis proscription on the ground that the technique "isdeleterious to maternal health," and places it in the formof a legislative finding. Appellants challenge this pro-vision on the ground that it operates to preclude vir-tually all abortions after the first trimester. This is so,it is claimed, because a substantial percentage, in theneighborhood of 70% according to the testimony, of allabortions performed in the United States after the firsttrimester are effected through the procedure of salineamniocentesis. Appellants stress the fact that the al-ternative methods of hysterotomy and hysterectomy aresignificantly more dangerous and critical for the womanthan the saline technique; they also point out that themortality rate for normal childbirth exceeds that wheresaline amniocentesis is employed. Finally, appellantsnote that the perhaps safer alternative of prostaglandininstillation, suggested and strongly relied upon by theappellees, at least at the time of the trial, is not yetwidely used in this country.

We held in Roe that after the first stage, "the State,in promoting its interest in the health of the mother,may, if it chooses, regulate the abortion procedure inways that are reasonably related to maternal health."410 U. S., at 164. The question with respect to § 9therefore is whether the flat prohibition of saline amnio-centesis is a restriction which "reasonably relates to thepreservation and protection of maternal health." Id.,at 163. The appellees urge that what the Missouri Gen-eral Assembly has done here is consistent with thatguideline and is buttressed by substantial supportingmedical evidence in the record to which this Courtshould defer.



The District Court's majority determined, on the basisof the evidence before it, that the maternal mortalityrate in childbirth does, indeed, exceed the mortality ratewhere saline amniocentesis is used. Therefore, the ma-jority acknowledged, § 9 could be upheld only if therewere safe alternative methods of inducing abortion afterthe first 12 weeks. 392 F. Supp., at 1373. Referring tosuch methods as hysterotomy, hysterectomy, "mechan-ical means of inducing abortion," and prostaglandin in-jection, the majority said that at least the latter twotechniques were safer than saline. Consequently, themajority concluded, the restriction in § 9 could be upheldas reasonably related to maternal health.

We feel that the majority, in reaching its conclusion,failed to appreciate and to consider several significantfacts. First, it did not recognize the prevalence, as therecord conclusively demonstrates, of the use of salineamniocentesis as an accepted medical procedure in thiscountry; the procedure, as noted above, is employedin a substantial majority (the testimony from both sidesranges from 68% to 80%) of all post-first-trimester abor-tions. Second, it failed to recognize that at the time oftrial, there were severe limitations on the availabilityof the prostaglandin technique, which, although promis-ing, was used only on an experimental basis until lessthan two years before. See Wolfe v. Schroering, 388F. Supp., at 637, where it was said that at that time(1974), there were "no physicians in Kentucky competentin the technique of prostaglandin amnio infusion." Andappellees offered no evidence that prostaglandin abor-tions were available in Missouri.2 Third, the statute's

1" In response to MR. JUSTICE WHITE'S criticism that the prosta-glandin method of inducing abortion was available in Missouri, eitherat the time the Act was passed or at the time of trial, we make thefollowing observations. First, there is no evidence in the record

OCTOBER TERM, 1975


reference to the insertion of "a saline or other fluid" ap-pears to include within its proscription the intra-amni-otic injection of prostaglandin itself and other methodsthat may be developed in the future and that mayprove highly effective and completely safe. Finally,the majority did not consider the anomaly inherent in§ 9 when it proscribes the use of saline but does not pro-hibit techniques that are many times more likely to re-sult in maternal death. See 392 F. Supp., at 1378 n. 8(dissenting opinion).

These unappreciated or overlooked factors place theState's decision to bar use of the saline method in acompletely different light. The State, through § 9,would prohibit the use of a method which the recordshows is the one most commonly used nationally byphysicians after the first trimester and which is safer,with respect to maternal mortality, than even continua-tion of the pregnancy until normal childbirth. More-

to which our Brother has pointed that demonstrates that the prosta-glandin method was or is available in Missouri. Second, the evi-dence presented to the District Court does not support such a view.Until January 1974 prostaglandin was used only on an experimentalbasis in a few medical centers. And, at the time the Missouri Gen-eral Assembly proscribed saline, the sole distributor of prostaglandin"restricted sales to around twenty medical centers from coast tocoast." Brief for Appellee Danforth 68.

It is clear, therefore, that at the time the Missouri General As-sembly passed the Act, prostaglandin was not available, in anymeaningful sense of that term. Because of this undisputed fact, itwas incumbent upon appellees to show that at the time of trial in1974 prostaglandin was available. They failed to do so. Indeed,appellees' expert witness, on whose testimony the dissenting opinionrelies, does not fill this void. He was able to state only that prosta-glandin was used in a limited way until shortly before trial and thathe "would think" that it was more readily available at the time oftrial. Tr. 335. Such an experimental and limited use of prosta-glandin throughout the country does not make it available oraccessible to concerned persons in Missouri.



over, as a practical matter, it forces a woman and herphysician to terminate her pregnancy by methods moredangerous to her health than the method outlawed.

As so viewed, particularly in the light of the presentunavailability-as demonstrated by the record-of theprostaglandin technique, the outright legislative pro-scription of saline fails as a reasonable regulation for theprotection of maternal health. It comes into focus, in-stead, as an unreasonable or arbitrary regulation de-signed to inhibit, and having the effect of inhibiting, thevast majority of abortions after the first 12 weeks. Assuch, it does not withstand constitutional challenge.See Wolfe v. Schroering, 388 F. Supp., at 637.

F

Recordkeeping. Sections 10 and 11 of the Act imposerecordkeeping requirements for health facilities and phy-sicians concerned with abortions irrespective of the preg-nancy stage. Under § 10, each such facility and physi-cian is to be supplied with forms "the purpose andfunction of which shall be the preservation of maternalhealth and life by adding to the sum of medical knowl-edge through the compilation of relevant maternal healthand life data and to monitor all abortions performed toassure that they are done only under and in accordancewith the provisions of the law." The statute states thatthe information on the forms "shall be confidential andshall be used only for statistical purposes." The "records,however, may be inspected and health data acquired bylocal, state, or national public health officers." Under§ 11 the records are to be kept for seven years in the per-manent files of the health facility where the abortion wasperformed.

Appellants object to these reporting and recordkeepingprovisions on the ground that they, too, impose an extra

OCTOBER TERM, 1975


layer and burden of regulation, and that they applythroughout all stages of pregnancy. All the judges ofthe District Court panel, however, viewed these provi-sions as statistical requirements "essential to the ad-vancement of medical knowledge," and as nothing thatwould "restrict either the abortion decision itself or theexercise of medical judgment in performing an abortion."392 F. Supp., at 1374.

One may concede that there are important and per-haps conflicting interests affected by recordkeeping re-quirements. On the one hand, maintenance of recordsindeed may be helpful in developing information per-tinent to the preservation of maternal health. On theother hand, as we stated in Roe, during the first stage ofpregnancy the State may impose no restrictions or regu-lations governing the medical judgment of the pregnantwoman's attending physician with respect to the ter-mination of her pregnancy. 410 U. S., at 163, 164.Furthermore, it is readily apparent that one reason forthe recordkeeping requirement, namely, to assure thatall abortions in Missouri are performed in accordancewith the Act, fades somewhat into insignificance in viewof our holding above as to spousal and parental consentrequirements.

Recordkeeping and reporting requirements that arereasonably directed to the preservation of maternalhealth and that properly respect a patient's confiden-tiality and privacy are permissible. This surely is sofor the period after the first stage of pregnancy, for thenthe State may enact substantive as well as recordkeepingregulations that are reasonable means of protecting ma-ternal health. As to the first stage, one may argue force-fully, as the appellants do, that the State should not beable to impose any recordkeeping requirements that sig-nificantly differ from those imposed with respect to other,



and comparable, medical or surgical procedures. Weconclude, however, that the provisions of §§ 10 and 11,while perhaps approaching impermissible limits, are notconstitutionally offensive in themselves. Recordkeepingof this kind, if not abused or overdone, can be usefulto the State's interest in protecting the health of itsfemale citizens, and may be a resource that is rele-vant to decisions involving medical experience andjudgment. 3 The added requirements for confidential-ity, with the sole exception for public health officers,and for retention for seven years, a period not un-reasonable in length, assist and persuade us in our de-termination of the constitutional limits. As so regarded,we see no legally significant impact or consequence on theabortion decision or on the physician-patient relationship.We naturally assume, furthermore, that these record-keeping and record-maintaining provisions will be in-terpreted and enforced by Missouri's Division of Healthin the light of our decision with respect to the Act's otherprovisions, and that, of course, they will not be utilized insuch a way as to accomplish, through the sheer burden ofrecordkeeping detail, what we have held to be an other-wise unconstitutional restriction. Obviously, the Statemay not require execution of spousal and parental con-sent forms that have been invalidated today.

G

Standard of care. Appellee Danforth in No. 74-1419appeals from the unanimous decision of the District

13 We note that in Missouri physicians must participate in the re-porting of births and deaths, Mo. Rev. Stat. §§ 193.100 and 193.140(1969), and communicable diseases, §§ 192.020 and 192.040 (1969),and that their use of controlled substances is rigidly monitored bythe State, §§ 195.010-195.545 (1969 and Supp. 1975).

OCTOBER TERM, 1975


Court that § 6 (1) of the Act is unconstitutional. Thatsection provides:

"No person who performs or induces an abortionshall fail to exercise that degree of professional skill,care and diligence to preserve the life and health ofthe fetus which such person would be required to ex-ercise in order to preserve the life and health of anyfetus intended to be born and not aborted. Anyphysician or person assisting in the abortion whoshall fail to take such measures to encourage or tosustain the life of the child, and the death of thechild results, shall be deemed guilty of manslaugh-ter . . . . Further, such physician or other personshall be liable in an action for damages."

The District Court held that the first sentence was un-constitutionally overbroad because it failed to excludefrom its reach the stage of pregnancy prior to viability.392 F. Supp., at 1371.

The Attorney General argues that the District Court'sinterpretation is erroneous and unnecessary. He claimsthat the first sentence of § 6 (1) establishes only thegeneral standard of care that applies to the person whoperforms the abortion, and that the second sentence de-scribes the circumstances when that standard of careapplies, namely, when a live child results from the pro-cedure. Thus, the first sentence, it is said, despite itsreference to the fetus, has no application until a livebirth results.

The appellants, of course, agree with the DistrictCourt. They take the position that § 6 (1) imposes itsstandard of care upon the person performing the abortioneven though the procedure takes place before viability.They argue that the statute on its face effectively pre-cludes abortion and was meant to do just that.



We see nothing that requires federal-court abstentionon this issue. Wisconsin v. Constantineau, 400 U. S. 433,437-439 (1971); Kusper v. Pontikes, 414 U. S. 51, 54-55(1973). And, like the three judges of the District Court,we are unable to accept the appellee's sophisticated in-terpretation of the statute. Section 6 (1) requires thephysician to exercise the prescribed skill, care, and dili-gence to preserve the life and health of the fetus. Itdoes not specify that such care need be taken only afterthe stage of viability has been reached. As the provisionnow reads, it impermissibly requires the physician to pre-serve the life and health of the fetus, whatever the stageof pregnancy. The fact that the second sentence of§ 6 (1) refers to a criminal penalty where the physicianfails "to take such measures to encourage or to sustainthe life of the child, and the death of the child results"(emphasis supplied), simply does not modify the dutyimposed by the previous sentence or limit that duty topregnancies that have reached the stage of viability.

The appellees finally argue that if the first sentence of§ 6 (1) does not survive constitutional attack, the secondsentence does, and, under the Act's severability provision,§ B, is severable from the first. The District Court'sruling of unconstitutionality, 392 F. Supp., at 1371, madespecific reference to the first sentence, but its conclusionof law and its judgment invalidated all of § 6 (1). Id.,at 1374; Jurisdictional Statement A-34 in No. 74-1419.Appellee Danforth's motion to alter or amend the judg-ment, so far as the second sentence of § 6 (1) was con-cerned, was denied by the District Court. Id., at A-39.

We conclude, as did the District Court, that § 6 (1)must stand or fall as a unit. Its provisions are inextri-cably bound together. And a physician's or other per-son's criminal failure to protect a liveborn infant surely

OCTOBER TERM, 1975

Appendix to opinion of the Court 428 U. S.

will be subject to prosecution in Missouri under theState's criminal statutes.

The judgment of the District Court is affirmed in partand reversed in part, and the case is remanded for fur-ther proceedings consistent with this opinion.

It is so ordered.

APPENDIX TO OPINION OF THE COURT

H. C. S. HOUSE BILL NO. 1211

AN ACT relating to abortion with penalty provisionsand emergency clause.

Be it enacted by the General Assembly of the State ofMissouri, as follows:

Section 1. It is the intention of the general assemblyof the state of Missouri to reasonably regulate abortionin conformance with the decisions of the supreme courtof the United States.

Section 2. Unless the language or context clearlyindicates a different meaning is intended, the followingwords or phrases for the purpose of this act shall begiven the meaning ascribed to them:

(1) "Abortion," the intentional destruction of the lifeof an embryo or fetus in his or her mother's womb orthe intentional termination of the pregnancy of a motherwith an intention other than to increase the probabilityof a live birth or to remove a dead or dying unbornchild;

(2) "Viability," that stage of fetal development whenthe life of the unborn child may be continued indefi-nitely outside the womb by natural or artificial life-supportive systems;

(3) "Physician," any person licensed to practice medi-


52 Appendix to opinion of the Court

cine in this state by the state board of registration ofthe healing arts.

Section 3. No abortion shall be performed prior tothe end of the first twelve weeks of pregnancy except:

(1) By a duly licensed, consenting physician in theexercise of his best clinical medical judgment.

(2) After the woman, prior to submitting to the abor-tion, certifies in writing her consent to the abortion andthat her consent is informed and freely given and is notthe result of coercion.

(3) With the written consent of the woman's spouse,unless the abortion is certified by a licensed physicianto be necessary in order to preserve the life of themother.

(4) With the written consent of one parent or per-son in loco parentis of the woman if the woman is un-married and under the age of eighteen years, unless theabortion is certified by a licensed physician as necessaryin order to preserve the life of the mother.

Section 4. No abortion performed subsequent to thefirst twelve weeks of pregnancy shall be performed exceptwhere the provisions of section 3 of this act are satisfiedand in a hospital.

Section 5. No abortion not necessary to preserve thelife or health of the mother shall be performed unlessthe attending physician first certifies with reasonablemedical certainty that the fetus is not viable.

Section 6. (1) No person who performs or inducesan abortion shall fail to exercise that degree of pro-fessional skill, care and diligence to preserve the lifeand health of the fetus which such person would berequired to exercise in order to preserve the life andhealth of any fetus intended to be born and not aborted.Any physician or person assisting in the abortion who

OCTOBER TERM, 1975


shall fail to take such measures to encourage or to sus-tain the life of the child, and the death of the child re-sults, shall be deemed guilty of manslaughter and uponconviction shall be punished as provided in Section 559.-140, RSMo. Further, such physician or other personshall be liable in an action for damages as provided inSection 537.080, RSMo.

(2) Whoever, with intent to do so, shall take the lifeof a premature infant aborted alive, shall be guilty ofmurder of the second degree.

(3) No person shall use any fetus or premature infantaborted alive for any type of scientific, research, labora-tory or other kind of experimentation either prior to orsubsequent to any abortion procedure except as neces-sary to protect or preserve the life and health of suchpremature infant aborted alive.

Section 7. In every case where a live born infantresults from an attempted abortion which was not per-formed to save the life or health of the mother, suchinfant shall be an abandoned ward of the state underthe jurisdiction of the juvenile court wherein the abor-tion occurred, and the mother and father, if he consentedto the abortion, of such infant, shall have no parentalrights or obligations whatsoever relating to such infant,as if the parental rights had been terminated pursuantto section 211.411, RSMo. The attending physicianshall forthwith notify said juvenile court of the existenceof such live born infant.

Section 8. Any woman seeking an abortion in thestate of Missouri shall be verbally informed of the pro-visions of section 7 of this act by the attending physicianand the woman shall certify in writing that she has beenso informed.

Section 9. The general assembly finds that themethod or technique of abortion known as saline amnio-


52 Appendix to opinion of the Court

centesis whereby the amniotic fluid is withdrawn and asaline or other fluid is inserted into the amniotic sacfor the purpose of killing the fetus and artificially induc-ing labor is deleterious to maternal health and is herebyprohibited after the first twelve weeks of pregnancy.

Section 10. 1. Every health facility and physicianshall be supplied with forms promulgated by the divisionof health, the purpose and function of which shall bethe preservation of maternal health and life by addingto the sum of medical knowledge through the compila-tion of relevant maternal health and life data and tomonitor all abortions performed to assure that they aredone only under and in accordance with the provisionsof the law.

2. The forms shall be provided by the state divisionof health.

3. All information obtained by physician, hospital,clinic or other health facility from a patient for the pur-pose of preparing reports to the division of health underthis section or reports received by the division of healthshall be confidential and shall be used only for statisticalpurposes. Such records, however, may be inspected andhealth data acquired by local, state, or national publichealth officers.

Section 11. All medical records and other documentsrequired to be kept shall be maintained in the perma-nent files of the health facility in which the abortionwas performed for a period of seven years.

Section 12. Any practitioner of medicine, surgery,or nursing, or other health personnel who shall willfullyand knowingly do or assist any action made unlawfulby this act shall be subject to having his license, applica-tion for license, or authority to practice his profession asa physician, surgeon, or nurse in the state of Missouri

OCTOBER TERM, 1975


rejected or revoked by the appropriate state licensingboard.

Section 13. Any physician or other person who failsto maintain the confidentiality of any records or re-ports required under this act is guilty of a misdemeanorand, upon conviction, shall be punished as provided bylaw.

Section 14. Any person who contrary to the provi-sions of this act knowingly performs or aids in the per-formance of any abortion or knowingly fails to performany action required by this act shall be guilty of a mis-demeanor and, upon conviction, shall be punished asprovided by law.

Section 15. Any person who is not a licensed phy-sician as defined in section 2 of this act who performsor attempts to perform an abortion on another as definedin subdivision (1) of section 2 of this act, is guilty of afelony, and upon conviction, shall be imprisoned by thedepartment of corrections for a term of not less thantwo years nor more than seventeen years.

Section 16. Nothing in this act shall be construedto exempt any person, firm, or corporation from civilliability for medical malpractice for negligent acts orcertification under this act.

Section A. Because of the necessity for immediatestate action to regulate abortions to protect the livesand health of citizens of this state, this act is deemednecessary for the immediate preservation of the publichealth, welfare, peace and safety, and is hereby declaredto be an emergency act within the meaning of theconstitution, and this act shall be in full force and effectupon its passage and approval.

Section B. If any provision of this Act or the appli-cation thereof to any person or circumstance shall be


52 STEWART, J., concurring

held invalid, such invalidity does not affect the provi-sions or application of this Act which can be giveneffect without the invalid provisions or applications, andto this end the provisions of this Act are declared to beseverable.

Approved June 14, 1974.Effective June 14, 1974.

MR. JUSTICE STEWART, with whom MR. JUSTICEPOWELL joins, concurring.

While joining the Court's opinion, I write separatelyto indicate my understanding of some of the constitu-tional issues raised by this litigation.

With respect to the definition of viability in § 2 (2)of the Act, it seems to me that the critical considerationis that the statutory definition has almost no operativesignificance. The State has merely required physiciansperforming abortions to certify that the fetus to beaborted is not viable. While the physician may bepunished for failing to issue a certification, he may not bepunished for erroneously concluding that the fetus is notviable. There is thus little chance that a physician'sprofessional decision to perform an abortion will be"chilled."

I agree with the Court that the patient-consent pro-vision in § 3 (2) is constitutional. While § 3 (2) obvi-ously regulates the abortion decision during all stages ofpregnancy, including the first trimester, I do not believeit conflicts with the statement in Roe v. Wade, 410 U. S.113, 163, that "for the period of pregnancy prior to [ap-proximately the end of the first trimester] the attendingphysician, in consultation with his patient, is free to de-termine, without regulation by the State, that, in hismedical judgment, the patient's pregnancy should beterminated. If that decision is reached, the judgment

OCTOBER TERM, 1975

STEWART, J., concurring 428 U. S.

may be effectuated by an abortion free of interferenceby the State." That statement was made in the contextof invalidating a state law aimed at thwarting a woman'sdecision to have an abortion. It was not intended topreclude the State from enacting a provision aimed atensuring that the abortion decision is made in a knowing,intelligent, and voluntary fashion.

As to the provision of the law that requires a husband'sconsent to an abortion, § 3 (3), the primary issue thatit raises is whether the State may constitutionally recog-nize and give effect to a right on his part to participate inthe decision to abort a jointly conceived child. Thisseems to me a rather more difficult problem than theCourt acknowledges. Previous decisions have recognizedthat a man's right to father children and enjoy the asso-ciation of his offspring is a constitutionally protected free-dom. See Stanley v. Illinois, 405 U. S. 645; Skinner v.Oklahoma ex rel. Williamson, 316 U. S. 535. But theCourt has recognized as well that the Constitution pro-tects "a woman's decision whether or not to terminateher pregnancy." Roe v. Wade, supra, at 153 (emphasisadded). In assessing the constitutional validity of§ 3 (3) we are called upon to choose between these com-peting rights. I agree with the Court that since "it isthe woman who physically bears the child and who isthe more directly and immediately affected by the preg-nancy ... the balance weighs in her favor." Ante, at 71.

With respect to the state law's requirement of parentalconsent, § 3 (4), I think it clear that its primary consti-tutional deficiency lies in its imposition of an absolutelimitation on the minor's right to obtain an abortion.The Court's opinion today in Bellotti v. Baird, post, at147-148, suggests that a materially different constitu-tional issue would be presented under a provision re-quiring parental consent or consultation in most cases


52 STEWART, J., concurring

but providing for prompt (i) judicial resolution of anydisagreement between the parent and the minor, or (ii)judicial determination that the minor is mature enoughto give an informed consent without parental concur-rence or that abortion in any event is in the minor's bestinterest. Such a provision would not impose parentalapproval as an absolute condition upon the minor's rightbut would assure in most instances consultation betweenthe parent and child.1

There can be little doubt that the State furthers aconstitutionally permissible end by encouraging an un-married pregnant minor to seek the help and advice ofher parents in making the very important decisionwhether or not to bear a child. That is a grave decision,and a girl of tender years, under emotional stress, maybe ill-equipped to make it without mature advice andemotional support. It seems unlikely that she willobtain adequate counsel and support from the attendingphysician at an abortion clinic, where abortions for preg-nant minors frequently take place.2

1 For some of the considerations that support the State's interestin encouraging parental consent, see the opinion of MR. JUSTICESTEVENS, concurring in part and dissenting in part. Post, at 102-105.

- The mode of operation of one such clinic is revealed by therecord in Bellotti v. Baird, post, p. 132, and accurately described byappellants in that case:

"The counseling . . . occurs entirely on the day the abortion isto be performed . . . . It lasts for two hours and takes place ingroups that include both minors and adults who are strangers toone another .... The physician takes no part in this counselingprocess . . . . Counseling is typically limited to a description ofabortion procedures, possible complications, and birth controltechniques . . ..

"The abortion itself takes five to seven minutes .... The phy-sician has no prior contact with the minor, and on the days thatabortions are being performed at the [clinic], the physician, . . .may be performing abortions on many other adults and minors ....On busy days patients are scheduled in separate groups, consisting

OCTOBER TERM, 1975

Opinion of WHITE, J. 428 U. S.

As to the constitutional validity of § 9 of the Act, pro-hibiting the use of the saline amniocentesis procedure, Iagree fully with the views expressed by MR. JUSTICESTEVENS.

MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE

and MR. JUSTICE REHNQUIST join, concurring in partand dissenting in part.

In Roe v. Wade, 410 U. S. 113 (1973), this Court rec-ognized a right to an abortion free from state prohibi-tion. The task of policing this limitation on state policepower is and will be a difficult and continuing venture insubstantive due process. However, even accepting Roev. Wade, there is nothing in the opinion in that case andnothing articulated in the Court's opinion in this casewhich justifies the invalidation of four provisions ofHouse Committee Substitute for House Bill No. 1211(hereafter Act) enacted by the Missouri 77th GeneralAssembly in 1974 in response to Roe v. Wade. Accord-ingly, I dissent, in part.

I

Roe v. Wade, supra, at 163, holds that until a fetusbecomes viable, the interest of the State in the life orpotential life it represents is outweighed by the interestof the mother in choosing "whether or not to terminateher pregnancy." 410 U. S., at 153. Section 3 (3) of theAct provides that a married woman may not obtain anabortion without her husband's consent. The Courtstrikes down this statute in one sentence. It says that"since the State cannot . . . proscribe abortion . . . theState cannot delegate authority to any particular person,

usually of five patients . . . After the abortion [the physician]spends a brief period with the minor and others in the group inthe recovery room .... " Brief for Appellants in No. 75-73, 0. T.1975, pp. 43-44.


52 Opinion of WHITE, J.

even the spouse, to prevent abortion .... ." Ante, at 69.But the State is not-under § 3 (3)-delegating to thehusband the power to vindicate the State's interest inthe future life of the fetus. It is instead recognizingthat the husband has an interest of his own in the lifeof the fetus which should not be extinguished by the uni-lateral decision of the wife.1 It by no means follows,from the fact that the mother's interest in deciding"whether or not to terminate her pregnancy" outweighsthe State's interest in the potential life of the fetus, thatthe husband's interest is also outweighed and may not beprotected by the State. A father's interest in having achild-perhaps his only child-may be unmatched by anyother interest in his life. See Stanley v. Illinois, 405U. S. 645, 651 (1972), and cases there cited. It is trulysurprising that the majority finds in the United StatesConstitution, as it must in order to justify the result itreaches, a rule that the State must assign a greater valueto a mother's decision to cut off a potential human lifeby abortion than to a father's decision to let it matureinto a live child. Such a rule cannot be found there, norcan it be found in Roe v. Wade, supra. These are mat-ters which a State should be able to decide free from thesuffocating power of the federal judge, purporting to actin the name of the Constitution.

I There are countless situations in which the State prohibits con-duct only when it is objected to by a private person most closelyaffected by it. Thus a State cannot forbid anyone to enter onprivate property with the owner's consent, but it may enact andenforce trespass laws against unauthorized entrances. It cannotforbid transfer of property held in tenancy by the entireties but itmay require consent by both husband and wife to such a transfer.These situations plainly do not involve delegations of legislativepower to private parties; and neither does the requirement in§ 3 (3) that a woman not deprive her husband of his future childwithout his consent.

OCTOBER TERM, 1975

Opinion of WTHITE, J. 428 U. S.

In describing the nature of a mother's interest in ter-mininating a pregnancy, the Court in Roe v. Wade men-tioned only the post-birth burdens of rearing a child, 410U. S., at 153, and rejected a rule based on her interest incontrolling her own body during pregnancy. Id., at 154.Missouri has a law which prevents a woman from puttinga child up for adoption over her husband's objection, Mo.Rev. Stat. § 453.030 (1969). This law represents a judg-ment by the State that the mother's interest in avoidingthe burdens of child rearing do not outweigh or snuffout the father's interest in participating in bringing uphis own child. That law is plainly valid, but no moreso than § 3 (3) of the Act now before us, resting as itdoes on precisely the same judgment.

II

Section 3 (4) requires that an unmarried woman under18 years of age obtain the consent of a parent or a personin loco parentis as a condition to an abortion. Onceagain the Court strikes the provision down in a sentence.It states: "Just as with the requirement of consent fromthe spouse, so here, the State does not have the con-stitutional authority to give a third party an absolute,and possibly arbitrary, veto over the decision of thephysician and his patient to terminate the patient's preg-nancy . . . ." Ante, at 74. The Court rejects the notionsthat the State has an interest in strengthening the familyunit, or that the parent has an "independent interest"in the abortion decision, sufficient to justify § 3 (4) andapparently concludes that the provision is therefore un-constitutional. But the purpose of the parental-consentrequirement is not merely to vindicate any interest of theparent or of the State. The purpose of the requirementis to vindicate the very right created in Roe v. Wade,supra-the right of the pregnant woman to decide



"whether or not to terminate her pregnancy." 410 U. S.,at 153 (emphasis added). The abortion decision is un-questionably important and has irrevocable consequenceswhichever way it is made. Missouri is entitled to protectthe minor unmarried woman from making the decisionin a way which is not in her own best interests, and itseeks to achieve this goal by requiring parental consulta-tion and consent. This is the traditional way by whichStates have sought to protect children from their ownimmature and improvident decisions; 2 and there is abso-lutely no reason expressed by the majority why the Statemay not utilize that method here.

III

Section 9 of the Act prohibits abortion by the methodknown as saline amniocentesis-a method used at thetime the Act was passed for 70% of abortions performedafter the first trimester. Legislative history reveals thatthe Missouri Legislature viewed saline amniocentesis asfar less safe a method of abortion than the so-called pros-taglandin method. The court below took evidence onthe question and summarized it as follows:

"The record of trial discloses that use of the salinemethod exposes a woman to the danger of severecomplications, regardless of the skill of the physicianor the precaution taken. Saline may cause one or

2 As MR. JUSTICE STEVENS states in his separate opinion, post, at

102:"The State's interest in the welfare of its young citizens justifies avariety of protective measures. Because he may not foresee theconsequences of his decision, a minor may not make an enforceablebargain. He may not lawfully work or travel where he pleases, oreven attend exhibitions of constitutionally protected adult motionpictures. Persons below a certain age may not marry without pa-rental consent. Indeed, such consent is essential even when theyoung woman is already pregnant."

OCTOBER TERM, 1975


more of the following conditions: Disseminated in-travascular coagulation or 'consumptive coagulap-athy' (disruption of the blood clotting mechanism[Dr. Warren, Tr. 57-58; Dr. Klaus, Tr. 269-270;Dr. Anderson, Tr. 307; Defts' Exs. H & M]),which may result in severe bleeding and possiblydeath (Dr. Warren, Tr. 58); hypernatremia (in-crease in blood sodium level), which may lead toconvulsions and death (Dr. Klaus, Tr. 268); andwater intoxication (accumulated water in the bodytissue which may occur when oxytoxin is used inconjunction with the injection of saline), resultingin damage to the central nervous system or death(Dr. Warren, Tr. 76; Dr. Klaus, Tr. 270-271; Dr.Anderson, Tr. 310; Defts' Ex. L). There is alsoevidence that saline amniocentesis causes massivetissue destruction to the inside of the uterus (Dr.Anderson, Tr. 308)." 392 F. Supp. 1362, 1372-1373(1975).

The District Court also cited considerable evidence es-tablishing that the prostaglandin method is safer. Infact, the Chief of Obstetrics at Yale University, Dr. An-derson, suggested that "physicians should be liable formalpractice if they chose saline over prostaglandin afterhaving been given all the facts on both methods." Id.,at 1373. The Court nevertheless reverses the decision ofthe District Court sustaining § 9 against constitutionalchallenge. It does so apparently because saline amnio-centesis was widely used before the Act was passed; be-cause the prostaglandin method was seldom used and wasnot generally available; and because other abortion tech-niques more dangerous than saline amniocentesis werenot banned. At bottom the majority's holding-as wellas the concurrence-rests on its factual finding that theprostaglandin method is unavailable to the women of



Missouri. It therefore concludes that the ban on thesaline method is "an unreasonable or arbitrary regulationdesigned to inhibit, and having the effect of inhibiting,the vast majority of abortions after the first 12 weeks,"ante, at 79. This factual finding was not made either bythe majority or by the dissenting judge below. Appel-lants have not argued that the record below supportssuch a finding. In fact the record below does not sup-port such a finding. There is no evidence in the recordthat women in Missouri will be unable to obtain abor-tions by the prostaglandin method. What evidence thereis in the record on this question supports the contraryconclusion.3 The record discloses that the prostaglandinmethod of abortion was the country's second most com-mon method of abortion during the second trimester,Tr. 42, 89-90; that although the prostaglandin methodhad previously been available only on an experimentalbasis, it was, at the time of trial available in "smallhospitals all over the country," id., at 342; that in an-other year or so the prostaglandin method would be-come-even in the absence of legislation on the subject-the most prevalent method. Anderson deposition, at 69.Moreover, one doctor quite sensibly testified that if thesaline method were banned, hospitals would quicklyswitch to the prostaglandin method.

The majority relies on the testimony of one doctorthat-as already noted-prostaglandin had been avail-able on an experimental basis only until January 1, 1974;and that its manufacturer, the Upjohn Co., restrictedits sales to large medical centers for the following sixmonths, after which sales were to be unrestricted. Tr.

3 The absence of more evidence on the subject in the record seemsto be a result of the fact that the claim that the prostaglandinmethod is unavailable was not part of plaintiffs' litigating strategybelow.

OCTOBER TERM, 1975


334-335. In what manner this evidence supports theproposition that prostaglandin is unavailable to thewomen of Missouri escapes me. The statute involvedin this litigation was passed on June 14, 1974; evidencewas taken in July 1974; the District Court's decree sus-taining the ban on the saline method which this Courtoverturns was entered in January 1975; and this Courtdeclares the statute unconstitutional in July 1976.There is simply no evidence in the record that prosta-glandin was or is unavailable at any time relevant tothis case. Without such evidence and without any fac-tual finding by the court below this Court cannot prop-erly strike down a statute passed by one of the States.Of course, there is no burden on a State to establish theconstitutionality of one of its laws. Absent proof of afact essential to its unconstitutionality, the statute re-mains in effect.

The only other basis for its factual finding which themajority offers is a citation to another case-Wolfe v.Schroering, 388 F. Supp. 631, 637 (WD Ky. 1974)-inwhich a different court concluded that the record in itscase showed the prostaglandin method to be unavailablein another State-Kentucky-at another time-two yearsago. This case must be decided on its own record. I amnot yet prepared to accept the notion that normal rules oflaw, procedure, and constitutional adjudication suddenlybecome irrelevant solely because a case touches on thesubject of abortion. The majority's finding of fact thatwomen in Missouri will be unable to obtain abortionsafter the first trimester if the saline method is bannedis wholly unjustifiable.

In any event, the point of § 9 is to change the practiceunder which most abortions were performed under thesaline amniocentesis method and to make the safer pros-taglandin method generally available. It promises to



achieve that result, if it remains operative, and the evi-dence discloses that the result is a desirable one or atleast that the legislature could have so viewed it. Thatshould end our inquiry, unless we purport to be not onlythe country's continuous constitutional convention butalso its ex officio medical board with powers to approveor disapprove medical and operative practices and stand-ards throughout the United States.

IV

Section 6 (1) of the Act provides:

"No person who performs or induces an abortionshall fail to exercise that degree of professional skill,care and diligence to preserve the life and healthof the fetus which such person would be requiredto exercise in order to preserve the life and healthof any fetus intended to be born and not aborted.Any physician or person assisting in the abortionwho shall fail to take such measures to encourageor to sustain the life of the child, and the death ofthe child results, shall be deemed guilty of man-slaughter . . . . Further, such physician or otherperson shall be liable in an action for damages."

If this section is read in any way other than through amicroscope, it is plainly intended to require that, wherea "fetus [may have] the capability of meaningful lifeoutside the mother's womb," Roe v. Wade, 410 U. S., at163, the abortion be handled in a way which is designedto preserve that life notwithstanding the mother's desireto terminate it. Indeed, even looked at through a micro-scope the statute seems to go no further. It requires aphysician to exercise "that degree of professional skill ...to preserve the ... fetus," which he would be required toexercise if the mother wanted a live child. Plainly,

OCTOBER TERM, 1975


if the pregnancy is to be terminated at a time whenthere is no chance of life outside the womb, a physicianwould not be required to exercise any care or skill topreserve the life of the fetus during abortion no matterwhat the mother's desires. The statute would appearthen to operate only in the gray area after the fetusmight be viable but while the physician is still able tocertify "with reasonable medical certainty that the fetusis not viable." See § 5 of the Act which flatly prohibitsabortions absent such a certification. Since the Statehas a compelling interest, sufficient to outweigh themother's desire to kill the fetus, when the "fetus ... hasthe capability of meaningful life outside the mother'swomb," Roe v. Wade, supra, at 163, the statute isconstitutional.

Incredibly, the Court reads the statute instead to re-quire "the physician to preserve the life and health ofthe fetus, whatever the stage of pregnancy," ante, at 83,thereby attributing to the Missouri Legislature the strangeintention of passing a statute with absolutely no chanceof surviving constitutional challenge under Roe v. Wade,supra.

The Court compounds its error by also striking downas unseverable the wholly unobjectionable requirementin the second sentence of § 6 (1) that where an abortionproduces a live child, steps must be taken to sustain itslife. It explains its result in two sentences:

"We conclude, as did the District Court, that§ 6 (1) must stand or fall as a unit. Its provisionsare inextricably bound together." Ante, at 83.

The question whether a constitutional provision ofstate law is severable from an unconstitutional provisionis entirely a question of the intent of the state legisla-ture. There is not the slightest reason to suppose thatthe Missouri Legislature would not require proper care


52 Opinion of STEVENS, J.

for live babies just because it cannot require physiciansperforming abortions to take care to preserve the lifeof fetuses. The Attorney General of Missouri has arguedhere that the only intent of § 6 (1) was to require physi-cians to support a live baby which resulted from anabortion.

At worst, § 6 (1) is ambiguous on both points and theDistrict Court should be directed to abstain until a con-struction may be had from the state courts. Under nocircumstances should § 6 (1) be declared unconstitu-tional at this point.'

V

I join the judgment and opinion of the Court insofaras it upholds the other portions of the Act against consti-tutional challenge.

MR. JUSTICE STEVENS, concurring in part and dissent-ing in part.

With the exception of Parts IV-D and IV-E, I jointhe Court's opinion.

In Roe v. Wade, 410 U. S. 113, the Court held that awoman's right to decide whether to abort a pregnancyis entitled to constitutional protection. That decision,which is now part of our law, answers the question dis-cussed in Part IV-E of the Court's opinion, but merelyposes the question decided in Part IV-D.

If two abortion procedures had been equally acces-sible to Missouri women, in my judgment the UnitedStates Constitution would not prevent the state legis-

4 The majority's construction of state law is, of course, not bind-ing on the Missouri courts. If they should disagree with the major-ity's reading of state law on one or both of the points treated bythe majority, the State could validly enforce the relevant parts ofthe statute-at least against all those people not parties to this case.Cf. Dombrowski v. Pfister, 380 U. S. 479, 492 (1965).

OCTOBER TERM, 1975

Opinion of STEVENS, J. 428 U. S.

lature from outlawing the one it found to be less safeeven though its conclusion might not reflect a unanimousconsensus of informed medical opinion. However, therecord indicates that when the Missouri statute wasenacted, a prohibition of the saline amniocentesis pro-cedure was almost tantamount to a prohibition of anyabortion in the State after the first 12 weeks of pregnancy.Such a prohibition is inconsistent with the essential hold-ing of Roe v. Wade and therefore cannot stand.

In my opinion, however, the parental-consent require-ment is consistent with the holding in Roe. The State'sinterest in the welfare of its young citizens justifies avariety of protective measures. Because he may notforesee the consequences of his decision, a minor may notmake an enforceable bargain. He may not lawfully workor travel where he pleases, or even attend exhibitions ofconstitutionally protected adult motion pictures. Per-sons below a certain age may not marry without pa-rental consent. Indeed, such consent is essential evenwhen the young woman is already pregnant. The State'sinterest in protecting a young person from harmjustifies the imposition of restraints on his orher freedom even though comparable restraints onadults would be constitutionally impermissible. There-fore, the holding in Roe v. Wade that the abortion de-cision is entitled to constitutional protection merelyemphasizes the importance of the decision; it does notlead to the conclusion that the state legislature has nopower to enact legislation for the purpose of protecting ayoung pregnant woman from the consequences of an in-correct decision.

The abortion decision is, of course, more importantthan the decision to attend or to avoid an adultmotion picture, or the decision to work long hours in a



factory. It is not necessarily any more important thanthe decision to run away from home or the decision tomarry. But even if it is the most important kindof a decision a young person may ever make,that assumption merely enhances the quality ofthe State's interest in maximizing the probability thatthe decision be made correctly and with full understand-ing of the consequences of either alternative.

The Court recognizes that the State may insist that thedecision not be made without the benefit of medical ad-vice. But since the most significant consequences of thedecision are not medical in character, it would seem tome that the State may, with equal legitimacy, insist thatthe decision be made only after other appropriate counselhas been had as well. Whatever choice a pregnantyoung woman makes-to marry, to abort, to bear herchild out of wedlock-the consequences of her de-cision may have a profound impact on her entirefuture life. A legislative determination that sucha choice will be made more wisely in mostcases if the advice and moral support of a parent playa part in the decisionmaking process is surely not irra-tional. Moreover, it is perfectly clear that the parental-consent requirement will necessarily involve a parentin the decisional process.

If there is no parental-consent requirement, manyminors will submit to the abortion procedurewithout ever informing their parents. An assump-tion that the parental reaction will be hostile, dis-paraging, or violent no doubt persuades many childrensimply to bypass parental counsel which would in fact beloving, supportive, and, indeed, for some indispensable.It is unrealistic, in my judgment, to assume that everyparent-child relationship is either (a) so perfect thatcommunication and accord will take place routinely or

OCTOBER TERM, 1975

Opinion of STEVENS, J. 428 U. S.

(b) so imperfect that the absence of communication re-flects the child's correct prediction that the parent will ex-ercise his or her veto arbitrarily to further a selfish inter-est rather than the child's interest. A state legislaturemay conclude that most parents will be primarily inter-ested in the welfare of their children, and further, thatthe imposition of a parental-consent requirement is anappropriate method of giving the parents an opportunityto foster that welfare by helping a pregnant distressedchild to make and to implement a correct decision.

The State's interest is not dependent on an estimateof the impact the parental-consent requirement mayhave on the total number of abortions that may takeplace. I assume that parents will sometimes preventabortions which might better be performed; other par-ents may advise abortions that should not be per-formed. Similarly, even doctors are not omniscient;specialists in performing abortions may incorrectly con-clude that the immediate advantages of the procedureoutweigh the disadvantages which a parent could evalu-ate in better perspective. In each individual case factorsmuch more profound than a mere medical judgment mayweigh heavily in the scales. The overriding considera-tion is that the right to make the choice be exercised aswisely as possible.

The Court assumes that parental consent is an appro-priate requirement if the minor is not capable of under-standing the procedure and of appreciating its conse-quences and those of available alternatives. This as-sumption is, of course, correct and consistent with thepredicate which underlies all state legislation seeking toprotect minors from the consequences of decisions theyare not yet prepared to make. In all such situationschronological age has been the basis for imposition of arestraint on the minor's freedom of choice even though



it is perfectly obvious that such a yardstick is impreciseand perhaps even unjust in particular cases. The Courtseems to assume that the capacity to conceive a childand the judgment of the physician are the only consti-tutionally permissible yardsticks for determining whethera young woman can independently make the abortiondecision. I doubt the accuracy of the Court's empiricaljudgment. Even if it were correct, however, as a matterof constitutional law I think a State has power to con-clude otherwise and to select a chronological age as itsstandard.

In short, the State's interest in the welfare of its youngcitizens is sufficient, in my judgment, to support theparental-consent requirement.

parenthood of central mis- souri v. danforth, attorney

Documents