APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case is a logical and anticipated corollary to Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), for it raises issues secondary to those that were then before the Court. Indeed, some of the questions now presented were forecast and reserved in Roe and Doe. 410 U.S., at 165 n. 67.
After the decisions in Roe and Doe, this Court remanded for reconsideration a pending Missouri federal case in which the State's then-existing abortion legislation,
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 federal court for the Western District of Missouri, in an unreported decision, thereafter declared the challenged Missouri statutes unconstitutional and granted injunctive relief. On appeal here, that judgment was summarily affirmed. Danforth v. Rodgers, 414 U.S. 1035 (1973).
In June 1974, somewhat more than a year after Roe and Doe had been decided, Missouri's 77th General Assembly, in its Second Regular Session, enacted House Committee Substitute for House Bill No. 1211 (hereinafter Act). The legislation was approved by the Governor on June 14, 1974, and became effective immediately by reason of an emergency clause contained in § A of the statute. The Act is set forth in full as the Appendix to this opinion. It imposes a structure for the control and regulation of abortions in Missouri during all stages of pregnancy.
Three days after the Act became effective, the present litigation was instituted in the United States District Court for the Eastern District of Missouri. The plaintiffs are Planned Parenthood of Central Missouri, a not-for-profit Missouri corporation which maintains a facility in Columbia, Mo., for the performance of abortions; David Hall, M.D.; and Michael Freiman, M.D. Doctor Hall is a resident of Columbia, is licensed as a physician in Missouri, is chairman of the Department and Professor of Obstetrics and Gynecology at the University of Missouri Medical School at Columbia, and supervises abortions at the Planned Parenthood facility. He was described by the three-judge court in the 1973 case as one of four plaintiffs who were "eminent, Missouri-licensed obstetricians and gynecologists." Jurisdictional
Statement, App. A7, in Danforth v. Rodgers, No. 73-426, O.T. 1973. Doctor Freiman is a resident of St. Louis, is licensed as a physician in Missouri, is an instructor of Clinical Obstetrics and Gynecology at Washington University Medical School, and performs abortions at two St. Louis hospitals and at a clinic in that city.
The named defendants are the Attorney General of Missouri and the Circuit Attorney of the city of St. Louis "in his representative capacity" and "as the representative of the class of all similar Prosecuting Attorneys of the various counties of the State of Missouri." Complaint 10.
The plaintiffs brought the action on their own behalf and, purportedly, "on behalf of the entire class consisting of duly licensed physicians and surgeons presently performing or desiring to perform the termination of pregnancies and on behalf of the entire class consisting of their patients desiring the termination of pregnancy, all within the State of Missouri." Id., at 9. Plaintiffs sought declaratory relief and also sought to enjoin enforcement of the Act on the ground, among others, that certain of its provisions deprived them and their patients of various constitutional rights: "the right to privacy in the physician-patient relationship"; the physicians' "right to practice medicine according to the highest standards 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 childbirth" or in medical procedures alternative to abortion; the physicians' "right to give and plaintiffs' patients' right to receive safe and adequate medical advice and treatment, pertaining to the decision of whether to carry a given pregnancy to term and the method of termination"; the patients' right under the Eighth Amendment to be free from cruel and unusual punishment "by forcing
and coercing them to bear each pregnancy they conceive"; and, by being placed "in the position of decision making beset with... inherent possibilities of bias and conflict of interest," the physician's right to due process of law guaranteed by the Fourteenth Amendment. Id., at 10-11.
The particular provisions of the Act that remained under specific challenge at the end of trial were § 2 (2), defining the term "viability"; § 3 (2), requiring from the woman, prior to submitting to abortion during the first 12 weeks of pregnancy, a certification in writing that she consents to the procedure and "that her consent is informed and freely given and is not the result of coercion"; § 3 (3), requiring, for the same period, "the written consent of the woman's spouse, unless the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother"; § 3 (4), requiring, for the same period, "the written consent of one parent or person in loco parentis of the woman if the woman is unmarried and under the age of eighteen years, unless the abortion is certified by a licensed physician as necessary in order to preserve the life of the mother"; § 6 (1), requiring the physician to exercise professional care "to preserve the life and health of the fetus" and, failing such, deeming him guilty of manslaughter and making him liable in an action for damages; § 7, declaring an infant, who survives "an attempted abortion which was not performed to save the life or health of the mother," to be "an abandoned ward of the state under the jurisdiction of the juvenile court," and depriving the mother, and also the father if he consented to the abortion, of parental rights; § 9, the legislative finding that the method of abortion known as saline amniocentesis "is deleterious to maternal health," and prohibiting that method after the first 12 weeks of pregnancy; and §§ 10
and 11, imposing reporting and maintenance of record requirements for health facilities and for physicians who perform abortions.
The case was presented to a three-judge District Court convened pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284. 392 F. Supp. 1362 (1975). The court ruled that the two physician-plaintiffs had standing inasmuch as § 6(1) provides that the physician who fails to exercise the prescribed standard of professional care due the fetus in the abortion procedure shall be guilty of manslaughter, and § 14 provides that any person who performs or aids in the performance of an abortion contrary to the provisions of the Act shall be guilty of a misdemeanor. 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 whether Planned Parenthood also had standing.
On the issues as to the constitutionality of the several challenged sections of the Act, the District Court, largely by a divided vote, ruled that all except the first sentence of § 6(1) withstood the attack. That sentence was held to be constitutionally impermissible because it imposed upon the physician the duty to exercise at all stages of pregnancy "that degree of professional skill, care and diligence to preserve the life and health of the fetus" that "would be required... to preserve the life and health of any fetus intended to be born." Inasmuch as this failed to exclude the stage of pregnancy prior to viability, the provision was "unconstitutionally overbroad." 392 F. Supp., at 1371.
One judge concurred in part and dissented in part. Id., at 1374. He agreed with the majority as to the constitutionality of §§ 2(2), 3(2), 10, and 11, respectively relating to the definition of "viability," the woman's prior written consent, maintenance of records,
and retention of records. He also agreed with the majority that § 6(1) was unconstitutionally overbroad. He dissented from the majority opinion upholding the constitutionality of §§ 3(3), 3(4), 7, and 9, relating, respectively, to spousal consent, parental consent, the termination of parental rights, and the proscription of saline amniocentesis.
In No. 74-1151, the plaintiffs appeal from that part of the District Court's judgment upholding sections of the Act as constitutional and denying injunctive relief against their application and enforcement. In No. 74-1419, the defendant Attorney General cross-appeals from that part of the judgment holding § 6(1) unconstitutional and enjoining enforcement thereof. We granted the plaintiffs' application for stay of enforcement of the Act pending appeal. 420 U.S. 918 (1975). Probable jurisdiction of both appeals thereafter was noted. 423 U.S. 819 (1975).
For convenience, we shall usually refer to the plaintiffs as "appellants" and to both named defendants as "appellees."
In Roe v. Wade the Court concluded that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S., at 153. It emphatically rejected, however, the proffered argument "that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses." Ibid. Instead,
this right "must be considered against important state interests in regulation." Id., at 154.
The Court went on to say that the "pregnant woman cannot be isolated in her privacy," for she "carries an embryo and, later, a fetus." Id., at 159. It was therefore "reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly." Ibid. The Court stressed the measure of the State's interest in "the light of present medical knowledge." Id., at 163. It concluded that the permissibility of state regulation was to be viewed in three stages: "For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician," without interference from the State. Id., at 164. The participation by the attending physician in the abortion decision, and his responsibility in that decision, thus, were emphasized. After the first stage, as so described, the State may, if it chooses, reasonably regulate the abortion procedure to preserve and protect maternal health. Ibid. Finally, for the stage subsequent to viability, a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability,*fn1 the State may regulate an abortion to protect the life of the fetus and even may proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Id., at 163-165.
With the exception specified in n. 2, infra, we agree with the District Court that the physician-appellants clearly have standing. This was established in Doe v. Bolton, 410 U.S., at 188. Like the Georgia statutes challenged in that case, "[t]he physician is the one against whom [the Missouri Act] directly operate[s] in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment.They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."*fn2 Ibid.
Our primary task, then, is to consider each of the
challenged provisions of the new Missouri abortion statute in the particular light of the opinions and decisions in Roe and in Doe. To this we now turn, with the assistance of helpful briefs from both sides and from some of the amici.
The definition of viability. Section 2(2) of the Act defines "viability" as "that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems." Appellants claim that this definition violates and conflicts with the discussion of viability in our opinion in Roe. 410 U.S., at 160, 163. In particular, appellants object to the failure of the definition to contain any reference to a gestational time period, to its failure to incorporate and reflect the three stages of pregnancy, to the presence of the word "indefinitely," and to the extra burden of regulation imposed. It is suggested that the definition expands the Court's definition of viability, as expressed in Roe, and amounts to a legislative determination of what is properly a matter for medical judgment. It is said that the "mere possibility of momentary survival is not the medical standard of viability." Brief for Appellants 67.
In Roe, we used the term "viable," properly we thought, to signify the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," and presumably capable of "meaningful life outside the mother's womb," 410 U.S., at 160, 163. We noted that this point "is usually placed" at about seven months or 28 weeks, but may occur earlier. Id., at 160.
We agree with the District Court and conclude that the definition of viability in the Act does not conflict with what was said and held in Roe. In fact, we believe that §
2(2), even when read in conjunction with § 5 (proscribing an abortion "not necessary to preserve the life or health of the mother... unless the attending physician first certifies with reasonable medical certainty that the fetus is not viable"), the constitutionality of which is not explicitly challenged here, reflects an attempt on the part of the Missouri General Assembly to comply with our observations and discussion in Roe relating to viability. Appellant Hall, in his deposition, had no particular difficulty with the statutory definition.*fn3 As noted above, we recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term. Section 2(2) does the same. Indeed, one might argue, as the appellees do, that the presence of the statute's words "continued indefinitely" favor, rather than disfavor, the appellants, for, arguably, the point when life can be "continued indefinitely outside the womb" may well occur later in pregnancy than the point where the fetus is "potentially able to live outside the mother's womb." Roe v. Wade, 410 U.S., at 160.
In any event, we agree with the District Court that it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period. The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician. The definition of viability in § 2(2) merely reflects this fact.The appellees do not contend otherwise, for they insist
that the determination of viability rests with the physician in the exercise of his professional judgment.*fn4
We thus do not accept appellants' contention that a specified number of weeks in pregnancy must be fixed by statute as the point of viability. See Wolfe v. Schroering, 388 F. Supp. 631, 637 (WD Ky. 1974); Hodgson v. Anderson, 378 F. Supp. 1008, 1016 (Minn. 1974), dismissed for want of jurisdiction sub nom. Spannaus v. Hodgson, 420 U.S. 903 (1975).*fn5
We conclude that the definition in § 2(2) of the Act does not circumvent the limitations on state regulation outlined in Roe. We therefore hold that the Act's definition of "viability" comports with Roe and withstands the constitutional attack made upon it in this litigation.
The woman's consent. Under § 3(2) of the Act, a woman, prior to submitting to an abortion during the first 12 weeks of pregnancy, must certify in writing her consent to the procedure and "that her consent is informed and freely given and is not the result of coercion." Appellants argue that this requirement is violative of
Roe v. Wade,410 U.S. at 164-165, by imposing an extra layer and burden of regulation on the abortion decision. See Doe v. Bolton, 410 U.S. at 195-200. Appellants also claim that the provision is overbroad and vague.
The District Court's majority relied on the propositions that the decision to terminate a pregnancy, of course, "is often a stressful one," and that the consent requirement of § 3(2) "insures that the pregnant woman retains control over the discretions of her consulting physician." 392 F.Supp. at 1368, 1369. The majority also felt that the consent requirement "does not single out the abortion procedure, but merely includes it within the category of medical operations for which consent is required." [n6] Id. at 1369. The third judge joined the majority in upholding § 3(2), but added that the written consent requirement was "not burdensome or chilling," and manifested "a legitimate interest of the state that this important decision has in fact been made by the person constitutionally empowered to do so." 392 F.Supp. at 1374. He went on to observe that the requirement "in no way interposes the state or third parties in the decisionmaking process." Id. at 1375.
We do not disagree with the result reached by the District Court as to § 3(2). It is true that Doe and Roe clearly establish that the State may not restrict the decision of the patient and her physician regarding abortion during the first stage of pregnancy. Despite the fact that apparently no other Missouri statute, with the exceptions referred to in n. 6, supra, requires a
patient's prior written consent to a surgical procedure,*fn7 the imposition by § 3(2) of such a requirement for termination of pregnancy even during the first stage, in our view, is not in itself an unconstitutional requirement. The decision to abort, indeed, is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent.
We could not say that a requirement imposed by the State that a prior written consent for any surgery would be unconstitutional. As a consequence, we see no constitutional defect in requiring it only for some types of surgery as, for example, an intracardiac procedure, or where the surgical risk is elevated above a specified mortality level, or, for that matter, for abortions.*fn8
The spouse's consent. Section 3(3) requires the prior written consent of the spouse of the woman seeking an abortion during the first 12 weeks of pregnancy, unless
"the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother."*fn9
The appellees defend § 3(3) on the ground that it was enacted in the light of the General Assembly's "perception of marriage as an institution," Brief for Appellee Danforth 34, and that any major change in family status is a decision to be made jointly by the marriage partners. Reference is made to an abortion's possible effect on the woman's childbearing potential. It is said that marriage always has entailed some legislatively imposed limitations: Reference is made to adultery and bigamy as criminal offenses; to Missouri's general requirement, Mo. Rev. Stat. § 453.030.3 (1969), that for an adoption of a child born in wedlock the consent of both parents is necessary; to similar joint-consent requirements imposed by a number of States with respect to artificial insemination and the legitimacy of children so conceived; to the laws of two States requiring spousal consent for voluntary sterilization; and to the long-established requirement of spousal consent for the effective disposition of an interest in real property. It is argued that "[r]ecognizing that the consent of both parties is generally necessary... to begin a family, the legislature has determined that a change in the family structure set in motion by mutual consent should be terminated only by mutual consent," Brief for Appellee Danforth 38, and that what the legislature did was to exercise its inherent policy-making power "for what was believed to be in the best interests 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 right unilaterally to prevent or veto an abortion, whether or
not he is the father of the fetus, and that this not only violates Roe and Doe but is also in conflict with other decided cases. See, e.g., Poe v. Gerstein, 517 F.2d 787, 794-796 (CA5 1975), appeal docketed, No. 75-713; Wolfe v. Schroering, 388 F. Supp., at 636-637; Doe v. Rampton, 366 F. Supp. 189, 193 (Utah 1973). They also refer to the situation where the husband's consent cannot be obtained because he cannot be located. And they assert that § 3(3) is vague and overbroad.
In Roe and Doe we specifically reserved decision on the question whether a requirement for consent by the father of the fetus, by the spouse, or by the parents, or a parent, of an unmarried minor, may be constitutionally imposed. 410 U.S., at 165 n. 67. We now hold that the State may not constitutionally require the consent of the spouse, as is specified under § 3(3) of the Missouri Act, as a condition for abortion during the first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present case, and with the courts whose decisions are cited above, that the State cannot "delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy." 392 F. Supp., at 1375. Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.
We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Maynard v. Hill, 125 U.S.
190, 211 (1888).*fn10 Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right. See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).*fn11
It seems manifest that, ideally, the decision to terminate a pregnancy should be one concurred in by both the wife and her husband. No marriage may be viewed as harmonious or successful if the marriage partners are fundamentally divided on so important and vital an issue. But it is difficult to believe that the goal of fostering mutuality and trust in a marriage, and of strengthening the marital relationship and the marriage institution, will be achieved by giving the husband a veto power exercisable for any reason whatsoever or for no reason at all. Even if the State had the ability to delegate to the husband a power it itself could not exercise, it is not at all likely that such action would further, as the District Court majority phrased it, the "interest of the state in protecting the mutuality of decisions vital to the marriage relationship." 392 F. Supp., at 1370.
We recognize, of course, that when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the 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 inconsistent with the standards enunciated in Roe v. Wade, 410 U.S., at 164-165, and is unconstitutional. It is therefore ...