Planned Parenthood of Central Missouri v. Danforth/Concurrence-dissent White

Mr. Justice White, with whom The Chief Justice and Mr. Justice Rehnquist join, concurring in part and dissenting in part.

In Roe v. Wade, 410 U.S. 113 (1973), this Court recognized a right to an abortion free from state prohibition. The task of policing this limitation on state police power is and will be a difficult and continuing venture in substantive due process. However, even accepting Roe v. Wade, there is nothing in the opinion in that case and nothing articulated in the Court's opinion in this case which justifies the invalidation of four provisions of House Committee Substitute for House Bill No. 1211 (hereafter Act) enacted by the Missouri 77th General Assembly in 1974 in response to Roe v. Wade. Accordingly, I dissent, in part.

I
Roe v. Wade, supra, at 163, holds that until a fetus becomes viable, the interest of the State in the life or potential life it represents is outweighed by the interest of the mother in choosing "whether or not to terminate her pregnancy." 410 U.S., at 153. Section 3 (3) of the Act provides that a married woman may not obtain an abortion without her husband's consent. The Court strikes down this statute in one sentence. It says that "since the State cannot...proscribe abortion...the State cannot delegate authority to any particular person, even the spouse, to prevent abortion...." Ante, at 69. But the State is not--under §3 (3)--delegating to the husband the power to vindicate the State's interest in the future life of the fetus. It is instead recognizing that the husband has an interest of his own in the life of the fetus which should not be extinguished by the unilateral decision of the wife. It by no means follows, from the fact that the mother's interest in deciding "whether or not to terminate her pregnancy" outweighs the State's interest in the potential life of the fetus, that the husband's interest is also outweighed and may not be protected by the State. A father's interest in having a child--perhaps his only child--may be unmatched by any other interest in his life. See Stanley v. Illinois, 405 U.S. 645, 651 (1972), and cases there cited. It is truly surprising that the majority finds in the United States Constitution, as it must in order to justify the result it reaches, a rule that the State must assign a greater value to a mother's decision to cut off a potential human life by abortion than to a father's decision to let it mature into a live child. Such a rule cannot be found there, nor can it be found in Roe v. Wade, supra. These are matters which a State should be able to decide free from the suffocating power of the federal judge, purporting to act in the name of the Constitution.

In describing the nature of a mother's interest in terminating a pregnancy, the Court in Roe v. Wade mentioned only the post-birth burdens of rearing a child, 410 U.S., at 153, and rejected a rule based on her interest in controlling her own body during pregnancy. Id., at 154. Missouri has a law which prevents a woman from putting a child up for adoption over her husband's objection, Mo. Rev. Stat. § 453.030 (1969). This law represents a judgment by the State that the mother's interest in avoiding the burdens of child rearing do not outweigh or snuff out the father's interest in participating in bringing up his own child. That law is plainly valid, but no more so than §3 (3) of the Act now before us, resting as it does on precisely the same judgment.

II
Section 3 (4) requires that an unmarried woman under 18 years of age obtain the consent of a parent or a person in loco parentis as a condition to an abortion. Once again the Court strikes the provision down in a sentence. It states: "Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy...." Ante, at 74. The Court rejects the notions that the State has an interest in strengthening the family unit, or that the parent has an "independent interest" in the abortion decision, sufficient to justify §3 (4) and apparently concludes that the provision is therefore unconstitutional. But the purpose of the parental-consent requirement is not merely to vindicate any interest of the parent or of the State. The purpose of the requirement is to vindicate the very right created in Roe v. Wade, supra-- he 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 unquestionably important and has irrevocable consequences whichever way it is made. Missouri is entitled to protect the minor unmarried woman from making the decision in a way which is not in her own best interests, and it seeks to achieve this goal by requiring parental consultation and consent. This is the traditional way by which States have sought to protect children from their own immature and improvident decisions; and there is absolutely no reason expressed by the majority why the State may not utilize that method here.

III
Section 9 of the Act prohibits abortion by the method known as saline amniocentesis--a method used at the time the Act was passed for 70% of abortions performed after the first trimester. Legislative history reveals that the Missouri Legislature viewed saline amniocentesis as far less safe a method of abortion than the so-called prostaglandin method. The court below took evidence on the question and summarized it as follows:

"The record of trial discloses that use of the saline method exposes a woman to the danger of severe complications, regardless of the skill of the physician or the precaution taken. Saline may cause one or more of the following conditions: Disseminated intravascular coagulation or 'consumptive coagulapathy' (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 possibly death (Dr. Warren, Tr. 58); hypernatremia (increase in blood sodium level), which may lead to convulsions and death (Dr. Klaus, Tr. 268); and water intoxication (accumulated water in the body tissue which may occur when oxytoxin is used in conjunction with the injection of saline), resulting in 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 also evidence that saline amniocentesis causes massive tissue 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 establishing that the prostaglandin method is safer. In fact, the Chief of Obstetrics at Yale University, Dr. Anderson, suggested that "physicians should be liable for malpractice if they chose saline over prostaglandin after having been given all the facts on both methods." Id., at 1373. The Court nevertheless reverses the decision of the District Court sustaining § 9 against constitutional challenge. It does so apparently because saline amniocentesis was widely used before the Act was passed; because the prostaglandin method was seldom used and was not generally available; and because other abortion techniques more dangerous than saline amniocentesis were not banned. At bottom the majority's holding--as well as the concurrence--rests on its factual finding that the prostaglandin method is unavailable to the women of Missouri. It therefore concludes that the ban on the saline method is "an unreasonable or arbitrary regulation designed 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 by the majority or by the dissenting judge below. Appellants have not argued that the record below supports such a finding. In fact the record below does not support such a finding. There is no evidence in the record that women in Missouri will be unable to obtain abortions by the prostaglandin method. What evidence there is in the record on this question supports the contrary conclusion. The record discloses that the prostaglandin method of abortion was the country's second most common method of abortion during the second trimester, Tr. 42, 89-90; that although the prostaglandin method had previously been available only on an experimental basis, it was, at the time of trial available in "small hospitals all over the country," id., at 342; that in another year or so the prostaglandin method would become--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 the saline method were banned, hospitals would quickly switch to the prostaglandin method.

The majority relies on the testimony of one doctor that--as already noted--prostaglandin had been available on an experimental basis only until January 1, 1974; and that its manufacturer, the Upjohn Co., restricted its sales to large medical centers for the following six months, after which sales were to be unrestricted. Tr. 334-335. In what manner this evidence supports the proposition that prostaglandin is unavailable to the women of Missouri escapes me. The statute involved in this litigation was passed on June 14, 1974; evidence was taken in July 1974; the District Court's decree sustaining the ban on the saline method which this Court overturns was entered in January 1975; and this Court declares the statute unconstitutional in July 1976. There is simply no evidence in the record that prostaglandin was or is unavailable at any time relevant to this case. Without such evidence and without any factual finding by the court below this Court cannot properly strike down a statute passed by one of the States. Of course, there is no burden on a State to establish the constitutionality of one of its laws. Absent proof of a fact essential to its unconstitutionality, the statute remains in effect.

The only other basis for its factual finding which the majority offers is a citation to another case--Wolfe v. Schroering, 388 F.Supp. 631, 637 (WD Ky. 1974)--in which a different court concluded that the record in its case showed the prostaglandin method to be unavailable in another State--Kentucky--at another time--two years ago. This case must be decided on its own record. I am not yet prepared to accept the notion that normal rules of law, procedure, and constitutional adjudication suddenly become irrelevant solely because a case touches on the subject of abortion. The majority's finding of fact that women in Missouri will be unable to obtain abortions after the first trimester if the saline method is banned is wholly unjustifiable.

In any event, the point of §9 is to change the practice under which most abortions were performed under the saline amniocentesis method and to make the safer prostaglandin method generally available. It promises to achieve that result, if it remains operative, and the evidence discloses that the result is a desirable one or at least that the legislature could have so viewed it. That should end our inquiry, unless we purport to be not only the country's continuous constitutional convention but also its ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.

IV
Section 6(1) of the Act provides:

"No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall fail to take such measures to encourage or to sustain the life of the child, and the death of the child results, shall be deemed guilty of manslaughter.... Further, such physician or other person shall be liable in an action for damages."

If this section is read in any way other than through a microscope, it is plainly intended to require that, where a "fetus [may have] the capability of meaningful life outside the mother's womb," Roe v. Wade, 410 U.S., at 163, the abortion be handled in a way which is designed to preserve that life notwithstanding the mother's desire to terminate it. Indeed, even looked at through a microscope the statute seems to go no further. It requires a physician to exercise "that degree of professional skill...to preserve the fetus," which he would be required to exercise if the mother wanted a live child. Plainly, if the pregnancy is to be terminated at a time when there is no chance of life outside the womb, a physician would not be required to exercise any care or skill to preserve the life of the fetus during abortion no matter what the mother's desires. The statute would appear then to operate only in the gray area after the fetus might be viable but while the physician is still able to certify "with reasonable medical certainty that the fetus is not viable." See §5 of the Act which flatly prohibits abortions absent such a certification. Since the State has a compelling interest, sufficient to outweigh the mother's desire to kill the fetus, when the "fetus...has the capability of meaningful life outside the mother's womb," Roe v. Wade, supra, at 163, the statute is constitutional.

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

The Court compounds its error by also striking down as unseverable the wholly unobjectionable requirement in the second sentence of §6(1) that where an abortion produces a live child, steps must be taken to sustain its life. 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 provisions are inextricably bound together." Ante, at 83.

The question whether a constitutional provision of state law is severable from an unconstitutional provision is entirely a question of the intent of the state legislature. There is not the slightest reason to suppose that the Missouri Legislature would not require proper care for live babies just because it cannot require physicians performing abortions to take care to preserve the life of fetuses. The Attorney General of Missouri has argued here that the only intent of §6(1) was to require physicians to support a live baby which resulted from an abortion.

At worst, §6(1) is ambiguous on both points and the District Court should be directed to abstain until a construction may be had from the state courts. Under no circumstances should §6(1) be declared unconstitutional at this point.

V
I join the judgment and opinion of the Court insofar as it upholds the other portions of the Act against constitutional challenge.