WEBSTER v. REPRODUCTIVE HEALTH SERVICES

U.S. SUPREME COURT

WEBSTER v. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490 (1989)

492 U.S. 490

WEBSTER, ATTORNEY GENERAL OF MISSOURI, ET AL. v. REPRODUCTIVE HEALTH SERVICES ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 88-605.

Argued April 26, 1989 Decided July 3, 1989

REHNQUIST, C. J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part II-C, the opinion of the Court with respect to Parts I, II-A, and II-B, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Parts II-D and III, in which WHITE and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 522, and SCALIA, J., post, p. 532, filed opinions concurring in part and concurring in the judgment. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 537. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 560.

Appellees, state-employed health professionals and private nonprofit corporations providing abortion services, brought suit in the District Court for declaratory and injunctive relief challenging the constitutionality of a Missouri statute regulating the performance of abortions. The statute, inter alia: (1) sets forth "findings" in its preamble that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and well-being," 1.205.1(1), (2), and requires that all state laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents, 1.205.2; (2) specifies that a physician, prior to performing an abortion on any woman whom he has reason to believe is 20 or more weeks pregnant, must ascertain whether the fetus is "viable" by performing "such medical examinations and tests as are necessary to make a finding of [the fetus'] gestational age, weight, and lung maturity," 188.029; (3) prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, 188.210, 188.215; and (4) makes it unlawful to use public funds, employees, or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life, 188.205, 188.210, 188.215. The District Court struck down each of the above provisions, among others, and enjoined their enforcement. The Court of Appeals affirmed, ruling that the provisions in question violated this Court's decisions in Roe v. Wade, 410 U.S. 113 , and subsequent cases.

Held:

The judgment is reversed.

851 F.2d 1071, reversed.

THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that:

1. This Court need not pass on the constitutionality of the Missouri statute's preamble. In invalidating the preamble, the Court of Appeals misconceived the meaning of the dictum in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 444 , that "a State may not adopt one theory of when life begins to justify its regulation of [492 U.S. 490, 491] abortions." That statement means only that a State could not "justify" any abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. The preamble does not by its terms regulate abortions or any other aspect of appellees' medical practice, and 1.205.2 can be interpreted to do no more than offer protections to unborn children in tort and probate law, which is permissible under Roe v. Wade, supra, at 161-162. This Court has emphasized that Roe implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion, Maher v. Roe, 432 U.S. 464, 474 , and the preamble can be read simply to express that sort of value judgment. The extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the state courts can definitively decide, and, until those courts have applied the preamble to restrict appellees' activities in some concrete way, it is inappropriate for federal courts to address its meaning. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 460 . Pp. 504-507.

2. The restrictions in 188.210 and 188.215 of the Missouri statute on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions do not contravene this Court's abortion decisions. The Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government may not deprive the individual. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196 . Thus, in Maher v. Roe, supra; Poelker v. Doe, 432 U.S. 519 ; and Harris v. McRae, 448 U.S. 297 , this Court upheld governmental regulations withholding public funds for nontherapeutic abortions but allowing payments for medical services related to childbirth, recognizing that a government's decision to favor childbirth over abortion through the allocation of public funds does not violate Roe v. Wade. A State may implement that same value judgment through the allocation of other public resources, such as hospitals and medical staff. There is no merit to the claim that Maher, Poelker, and McRae must be distinguished on the grounds that preventing access to a public facility narrows or forecloses the availability of abortion. Just as in those cases, Missouri's decision to use public facilities and employees to encourage childbirth over abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but leaves her with the same choices as if the State had decided not to operate any hospitals at all. The challenged provisions restrict her ability to obtain an abortion only to the extent that she chooses to use a physician affiliated with a public hospital. Also without merit is the [492 U.S. 490, 492] assertion that Maher, Poelker, and McRae must be distinguished on the ground that, since the evidence shows that all of a public facility's costs in providing abortion services are recouped when the patient pays such that no public funds are expended, the Missouri statute goes beyond expressing a preference for childbirth over abortion by creating an obstacle to the right to choose abortion that cannot stand absent a compelling state interest. Nothing in the Constitution requires States to enter or remain in the abortion business or entitles private physicians and their patients access to public facilities for the performance of abortions. Indeed, if the State does recoup all of its costs in performing abortions and no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or employees for performing abortions. The cases in question all support the view that the State need not commit any resources to performing abortions, even if it can turn a profit by doing so. Pp. 507-511.

3. The controversy over 188.205's prohibition on the use of public funds to encourage or counsel a woman to have a nontherapeutic abortion is moot. The Court of Appeals did not consider 188.205 separately from 188.210 and 188.215 - which respectively prohibit the use of public employees and facilities for such counseling - in holding all three sections unconstitutionally vague and violative of a woman's right to choose an abortion. Missouri has appealed only the invalidation of 188.205. In light of the State's claim, which this Court accepts for purposes of decision, that 188.205 is not directed at the primary conduct of physicians or health care providers, but is simply an instruction to the State's fiscal officers not to allocate public funds for abortion counseling, appellees contend that they are not "adversely" affected by the section and therefore that there is no longer a case or controversy before the Court on this question. Since plaintiffs are masters of their complaints even at the appellate stage, and since appellees no longer seek equitable relief on their 188.205 claim, the Court of Appeals is directed to vacate the District Court's judgment with instructions to dismiss the relevant part of the complaint with prejudice. Deakins v. Monaghan, 484 U.S. 193, 200 . Pp. 511-513.

THE CHIEF JUSTICE, joined by JUSTICE WHITE and JUSTICE KENNEDY, concluded in Parts II-D and III that:

1. Section 188.029 of the Missouri statute - which specifies, in its first sentence, that a physician, before performing an abortion on a woman he has reason to believe is carrying an unborn child of 20 or more weeks gestational age, shall first determine if the unborn child is viable by using that degree of care, skill, and proficiency that is commonly exercised by practitioners in the field; but which then provides, in its second sentence, that, in making the viability determination, the physician shall [492 U.S. 490, 493] perform such medical examinations and tests as are necessary to make a finding of the unborn child's gestational age, weight, and lung maturity - is constitutional, since it permissibly furthers the State's interest in protecting potential human life. Pp. 513-521.

(a) The Court of Appeals committed plain error in reading 188.029 as requiring that after 20 weeks the specified test must be performed. That section makes sense only if its second sentence is read to require only those tests that are useful in making subsidiary viability findings. Reading the sentence to require the tests in all circumstances, including when the physician's reasonable professional judgment indicates that they would be irrelevant to determining viability or even dangerous to the mother and the fetus, would conflict with the first sentence's requirement that the physician apply his reasonable professional skill and judgment. It would also be incongruous to read the provision, especially the word "necessary," to require tests irrelevant to the expressed statutory purpose of determining viability. Pp. 514-515.

(b) Section 188.029 is reasonably designed to ensure that abortions are not performed where the fetus is viable. The section's tests are intended to determine viability, the State having chosen viability as the point at which its interest in potential human life must be safeguarded. The section creates what is essentially a presumption of viability at 20 weeks, which the physician, prior to performing an abortion, must rebut with tests - including, if feasible, those for gestational age, fetal weight, and lung capacity - indicating that the fetus is not viable. While the District Court found that uncontradicted medical evidence established that a 20-week fetus is not viable, and that 23 1/2 to 24 weeks' gestation is the earliest point at which a reasonable possibility of viability exists, it also found that there may be a 4-week error in estimating gestational age, which supports testing at 20 weeks. Pp. 515-516.

(c) Section 188.029 conflicts with Roe v. Wade and cases following it. Since the section's tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were in fact second-trimester abortions. While Roe, 410 U.S., at 162 , recognized the State's interest in protecting potential human life as "important and legitimate," it also limited state involvement in second-trimester abortions to protecting maternal health, id., at 164, and allowed States to regulate or proscribe abortions to protect the unborn child only after viability, id., at 165. Since the tests in question regulate the physician's discretion in determining the viability of the fetus, 188.029 conflicts with language in Colautti v. Franklin, 439 U.S. 379, 388 -389, stating that the viability determination is, and must be, a matter for the responsible attending physician's judgment. And, in light of District Court findings that the tests increase the expenses of abortion, their validity [492 U.S. 490, 494] may also be questioned under Akron, 462 U.S., at 434 -435, which held that a requirement that second-trimester abortions be performed in hospitals was invalid because it substantially increased the expenses of those procedures. Pp. 516-517.

(d) The doubt cast on the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that Roe's rigid trimester analysis has proved to be unsound in principle and unworkable in practice. In such circumstances, this Court does not refrain from reconsidering prior constitutional rulings, notwithstanding stare decisis. E. g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 . The Roe framework is hardly consistent with the notion of a Constitution like ours that is cast in general terms and usually speaks in general principles. The framework's key elements - trimesters and viability - are not found in the Constitution's text, and, since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. There is also no reason why the State's compelling interest in protecting potential human life should not extend throughout pregnancy rather than coming into existence only at the point of viability. Thus, the Roe trimester framework should be abandoned. Pp. 517-520.

(e) There is no merit to JUSTICE BLACKMUN'S contention that the Court should join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U.S. 479 . Unlike Roe, Griswold did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. The Roe framework sought to deal with areas of medical practice traditionally left to the States, and to balance once and for all, by reference only to the calendar, the State's interest in protecting potential human life against the claims of a pregnant woman to decide whether or not to abort. The Court's experience in applying Roe in later cases suggests that there is wisdom in not necessarily attempting to elaborate the differences between a "fundamental right" to an abortion, Akron, supra, at 420, n. 1 a "limited fundamental constitutional right," post, at 555, or a liberty interest protected by the Due Process Clause. Moreover, although this decision will undoubtedly allow more governmental regulation of abortion than was permissible before, the goal of constitutional adjudication is not to remove inexorably "politically devisive" issues from the ambit of the legislative process, but is, rather, to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. Furthermore, the suggestion that legislative bodies, in a Nation [492 U.S. 490, 495] where more than half the population is female, will treat this decision as an invitation to enact abortion laws reminiscent of the dark ages misreads the decision and does scant justice to those who serve in such bodies and the people who elect them. Pp. 520-521.

2. This case affords no occasion to disturb Roe's holding that a Texas statute which criminalized all nontherapeutic abortions unconstitutionally infringed the right to an abortion derived from the Due Process Clause. Roe is distinguishable on its facts, since Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. P. 521.

JUSTICE O'CONNOR, agreeing that it was plain error for the Court of Appeals to interpret the second sentence of 188.029 as meaning that doctors must perform tests to find gestational age, fetal weight, and lung maturity, concluded that the section was constitutional as properly interpreted by the plurality, and that the plurality should therefore not have proceeded to reconsider Roe v. Wade. This Court refrains from deciding constitutional questions where there is no need to do so, and generally does not formulate a constitutional rule broader than the precise facts to which it is to be applied. Ashwander v. TVA, 297 U.S. 288, 346 , 347. Since appellees did not appeal the District Court's ruling that the first sentence of 188.029 is constitutional, there is no dispute between the parties over the presumption of viability at 20 weeks created by that first sentence. Moreover, as properly interpreted by the plurality, the section's second sentence does nothing more than delineate means by which the unchallenged 20-week presumption may be overcome if those means are useful in determining viability and can be prudently employed. As so interpreted, the viability testing requirements do not conflict with any of the Court's abortion decisions. As the plurality recognizes, under its interpretation of 188.029's second sentence, the viability testing requirements promote the State's interest in potential life. This Court has recognized that a State may promote that interest when viability is possible. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 770 -771. Similarly, the basis for reliance by the lower courts on Colautti v. Franklin, 439 U.S. 379, 388 -389, disappears when 188.029 is properly interpreted to require only subsidiary viability findings, since the State has not attempted to substitute its judgment for the physician's ascertainment of viability, which therefore remains "the critical point." Nor does the marginal increase in the cost of an abortion created by 188.029's viability testing provision, as interpreted, conflict with Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 434 -439, since, here, such costs do not place a "heavy, and unnecessary burden" on a woman's abortion decision, whereas the statutory requirement in Akron, which related to [492 U.S. 490, 496] previability abortions, more than doubled a woman's costs. Moreover, the statutory requirement in Akron involved second-trimester abortions generally; 188.029 concerns only tests and examinations to determine viability when viability is possible. The State's compelling interest in potential life postviability renders its interest in determining the critical point of viability equally compelling. Thornburgh, supra, at 770-771. When the constitutional invalidity of a State's abortion statute actually turns upon the constitutional validity of Roe, there will be time enough to reexamine Roe, and to do so carefully. Pp. 525-531.

JUSTICE SCALIA would reconsider and explicitly overrule Roe v. Wade. Avoiding the Roe question by deciding this case in as narrow a manner as possible is not required by precedent and not justified by policy. To do so is needlessly to prolong this Court's involvement in a field where the answers to the central questions are political rather than juridical, and thus to make the Court the object of the sort of organized pressure that political institutions in a democracy ought to receive. It is particularly perverse to decide this case as narrowly as possible in order to avoid reading the inexpressibly "broader-than-was-required-by-the-precise-facts" structure established by Roe v. Wade. The question of Roe's validity is presented here, inasmuch as 188.029 constitutes a legislative imposition on the judgment of the physician concerning the point of viability and increases the cost of an abortion. It does palpable harm, if the States can and would eliminate largely unrestricted abortion, skillfully to refrain from telling them so. Pp. 532-537.

William L. Webster, Attorney General of Missouri, pro se, argued the cause for appellants. With him on the briefs were Michael L. Boicourt and Jerry L. Short, Assistant Attorneys General.

Charles Fried argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting [492 U.S. 490, 497] Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Roger Clegg, Steven R. Valentine, and Michael K. Kellogg.

Frank Susman argued the cause for appellees. With him on the brief were Roger K. Evans, Dara Klassel, Barbara E. Otten, Thomas M. Blumenthal, and Janet Benshoof. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed for Alabama Lawyers for Unborn Children, Inc., by John J. Coleman III and Thomas E. Maxwell; for the American Association of Prolife Obstetricians and Gynecologists et al. by Dolores Horan and Paige Comstock Cunningham; for the American Family Association, Inc., by Peggy M. Coleman; for the American Life League, Inc., by Marion Edwyn Harrison and John S. Baker, Jr.; for the Catholic Health Association of the United States by J. Roger Edgar, David M. Harris, Kathleen M. Boozang, J. Stuart Showalter, and Peter E. Campbell; for the Catholic Lawyers Guild of the Archdiocese of Boston, Inc., by Calum B. Anderson and Leonard F. Zandrow, Jr.; for the Center for Judicial Studies et al. by Jules B. Gerard; for Covenant House et al. by Gregory A. Loken; for Focus On The Family et al. by H. Robert Showers; for the Holy Orthodox Church by James George Jatras; for the Knights of Columbus by Robert J. Cynkar and Brendan V. Sullivan, Jr.; for the Lutheran Church-Missouri Synod et al. by Philip E. Draheim; for the Missouri Catholic Conference by David M. Harris, J. Roger Edgar, Bernard C. Huger, Kathleen M. Boozang, and Louis C. DeFeo, Jr.; for the National Legal Foundation by Douglas W. Davis and Robert K. Skolrood; for Right to Life Advocates, Inc., by Richard W. Schmude and Rory R. Olsen; for the Rutherford Institute et al. by James J. Knicely, John W. Whitehead, Thomas W. Strahan, David E. Morris, William B. Hollberg, Amy Dougherty, Randall A. Pentiuk, William Bonner, Larry L. Crain, and W. Charles Bundren; for the Southern Center for Law and Ethics by Albert L. Jordan; for the Southwest Life and Law Center, Inc., by David Burnell Smith; for the United States Catholic Conference by Mark E. Chopko and Phillip H. Harris; for 127 Members of the Missouri General Assembly by Timothy Belz, Lynn D. Wardle, and Richard G. Wilkins; and for James Joseph Lynch, Jr., by Mr. Lynch, pro se.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neuborne, Janet Benshoof, Rachael N. Pine, and Lynn M. Paltrow; for the American Jewish Congress et al. by Martha L. Minow; for the American Library Association et al. by Bruce J. Ennis and Mark D. Schneider; for the American Medical Association et al. by Jack R. Bierig, Carter G. Phillips, Elizabeth H. Esty, Stephan [492 U.S. 490, 498] E. Lawton, Ann E. Allen, Laurie R. Rockett, and Joel I. Klein; for the American Psychological Association by Donald N. Bersoff; for the American Public Health Association et al. by John H. Hall and Nadine Taub; for Americans for Democratic Action et al. by Marsha S. Berzon; for Americans United for Separation of Church and State by Lee Boothby, Robert W. Nixon, and Robert J. Lipshutz; for the Association of Reproductive Health Professionals et al. by Colleen K. Connell and Dorothy B. Zimbrakos; for Bioethicists for Privacy by George J. Annas; for Catholics for a Free Choice et al. by Patricia Hennessey; for the Center for Population Options et al. by John H. Henn and Thomas Asher; for the Committee on Civil Rights of the Bar of the City of New York et al. by Jonathan Lang, Diane S. Wilner, Arthur S. Leonard, Audrey S. Feinberg, and Janice Goodman; for 22 International Women's Health Organizations by Kathryn Kolbert; for the American Nurses' Association et al. by E. Calvin Golumbic; for the National Coalition Against Domestic Violence by David A. Strauss; for the National Family Planning and Reproductive Health Association by James L. Feldesman, Jeffrey K. Stith, and Thomas E. Zemaitis; for the National Association of Public Hospitals by Alan K. Parver and Phyllis E. Bernard; for Population-Environment Balance et al. by Dina R. Lassow; for 281 American Historians by Sylvia A. Law; and for 2,887 Women Who Have Had Abortions et al. by Sarah E. Burns.

Briefs of amici curiae were filed for the State of California et al. by Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solicitor General, and Suzanne M. Lynn and Marla Tepper, Assistant Attorneys General, James M. Shannon, Attorney General of Massachusetts, and Suzanne E. Durrell and Madelyn F. Wessel, Assistant Attorneys General, Elizabeth Holtzman, pro se, Barbara D. Underwood, John K. Van de Kamp, Attorney General of California, Duane Woodard, Attorney General of Colorado, Jim Mattox, Attorney General of Texas, and Jeffrey L. Amestoy, Attorney General of Vermont; for the State of Louisiana et al. by William J. Guste, Jr., Attorney General of Louisiana, Jo Ann P. Levert, Assistant Attorney General, and Thomas A. Rayer, Robert K. Corbin, Attorney General of Arizona, Jim Jones, Attorney General of Idaho, and Ernest D. Preate, Jr., Attorney General of Pennsylvania; for Agudath Israel of America by Steven D. Prager; for the American Academy of Medical Ethics by James Bopp, Jr.; for the California National Organization for Women et al. by Kathryn A. Sure; for American Collegians for Life, Inc., et al. by Robert A. Destro; for the Canadian Abortion Rights Action League et al. by [492 U.S. 490, 499] Estelle Rogers; for the Association for Public Justice et al. by Joseph W. Dellapenna; for Birthright, Inc., by Joseph I. McCullough, Jr.; for Catholics United for Life et al. by Walter M. Weber, Michael J. Woodruff, Charles E. Rice, and Michael J. Laird; for Christian Advocates Serving Evangelism by Theodore H. Amshoff, Jr.; for Doctors for Life et al. by Andrew F. Puzder and Kenneth C. Jones; for Feminists For Life of America et al. by Christine Smith Torre; for Free Speech Advocates by Thomas Patrick Monaghan; for Human Life International by Robert L. Sassone; for the International Right to Life Federation by John J. Potts; for the National Association of Women Lawyers et al. by Nicholas DeB. Katzenbach, Leona Beane, and Estelle H. Rogers; for the National Council of Negro Women, Inc., et al. by Rhonda Copelon; for the National Organization for Women by John S. L. Katz; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the New England Christian Action Council, Inc., by Philip D. Moran; for the Right to Life League of Southern California, Inc., by Robert L. Sassone; for 77 Organizations Committed to Women's Equality by Judith L. Lichtman, Donna R. Lenhoff, Marcia Greenberger, Stephanie Ridder, and Wendy Webster Williams; for Certain Members of the Congress of the United States by Burke Marshall and Norman Redlich; for Congressman Christopher H. Smith et al. by Albert P. Blaustein, Edward R. Grant, and Ann-Louise Lohr; for 608 State Legislators by Herma Hill Kay, James J. Brosnahan, and Jack W. Londen; for Certain Members of the General Assembly of the Commonwealth of Pennsylvania by William Bentley Ball, Philip J. Murren, and Maura K. Quinlan; for Certain American State Legislators by Paul Benjamin Linton and Clarke D. Forsythe; for A Group of American Law Professors by Norman Redlich; for 167 Distinguished Scientists and Physicians by Jay Kelly Wright; for Edward Allen by Robert L. Sassone; for Larry Joyce by Thomas P. Joyce; for Paul Marx by Robert L. Sassone; for Bernard N. Nathanson by Mr. Sassone; and for Austin Vaughn et al. by Mr. Sassone. [492 U.S. 490, 498]