428 U.S. 52 (1976)
After the Supreme Court's decisions in Roe v. Wade and Doe v. Bolton in 1973, a pending Missouri federal case challenging the state's existing abortion statutes was remanded for reconsideration.1 A three-judge federal court declared those statutes unconstitutional and granted injunctive relief, a judgment that the Supreme Court summarily affirmed.2 In June 1974 the Missouri General Assembly enacted House Committee Substitute for House Bill No. 1211, which established a comprehensive regulatory structure for abortions at all stages of pregnancy; the Governor approved the measure on June 14, 1974, and it took effect immediately under an emergency clause.3
Three days after the Act became effective, Planned Parenthood of Central Missouri, a not-for-profit corporation operating an abortion facility in Columbia, and two licensed physicians, David Hall and Michael Freiman, filed suit in the United States District Court for the Eastern District of Missouri against the state Attorney General and the St. Louis Circuit Attorney.4 The plaintiffs sought declaratory and injunctive relief on behalf of themselves and their patients, specifically challenging the viability definition in section 2(2), the woman's written consent requirement in section 3(2), the spousal consent requirement in section 3(3), the parental consent requirement in section 3(4), the fetal standard of care in section 6(1), the saline amniocentesis ban in section 9, and the recordkeeping mandates in sections 10 and 11.5
The case was heard by a three-judge district court pursuant to 28 U.S.C. §§ 2281 and 2284.6 In 1975 the court upheld all challenged provisions except the first sentence of section 6(1), which it found unconstitutionally overbroad because it applied before viability.7 One judge concurred in part and dissented in part, disagreeing with the majority's rulings on spousal consent, parental consent, the wardship provision, and the saline ban.8 The plaintiffs appealed the portions of the judgment upholding the Act, and the Attorney General cross-appealed the invalidation of section 6(1).9
The Supreme Court granted the plaintiffs' application for a stay of enforcement pending appeal in 1975 and noted probable jurisdiction over both appeals later that year.10
Whether the definition of viability in section 2(2) of the Missouri Act conflicts with the standards set forth in Roe v. Wade?11
No. The established facts show that after Roe v. Wade and Doe v. Bolton the Missouri General Assembly enacted the 1974 Act.15 Section 2(2) defines viability as the stage when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems.16 This definition leaves the determination to the physician on a case-by-case basis.17 It attempts to track the Roe discussion of viability as potentially able to live outside the womb albeit with artificial aid.18 The district court upheld the provision.19 The Supreme Court agreed that the legislature properly refrained from imposing a specific number of weeks.20 The facts further establish that physician Hall testified the definition was consistent with medical understanding.21
The rule requires that any statutory definition preserve physician flexibility without imposing an inflexible gestational marker.22 Section 2(2) satisfies this element because it mirrors the Roe language.23 No conflict arises on these facts.24
The definition of viability in section 2(2) does not conflict with Roe v. Wade and is constitutional.25
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Justice Stewart wrote separately to emphasize that the statutory definition of viability has almost no operative significance in practice.26 The physician is required only to certify that the fetus is not viable.27 He faces no punishment for an erroneous conclusion that the fetus is not viable.28
This practical operation of the statute prevents any chilling effect on the physician's professional decision to perform an abortion.29 Stewart stressed that the definition therefore creates little risk of interfering with the physician-patient relationship during the first trimester.30
Whether the requirement in section 3(2) that a woman provide prior written consent to an abortion during the first twelve weeks of pregnancy is constitutional?31
Yes. The established facts demonstrate that section 3(2) requires the woman during the first twelve weeks to certify in writing that her consent is informed and freely given and not the result of coercion.36 The district court upheld this provision because the decision is often stressful and the requirement ensures the woman retains control.37 The Supreme Court held that the state may constitutionally require prior written consent for termination of pregnancy even in the first stage.38
The woman is primarily concerned and her awareness may be assured by the state.39 The facts show no other Missouri statute requires written consent for surgery except in limited contexts.40 The Court found no constitutional defect in applying the requirement to abortions.41
The woman's written consent requirement in section 3(2) is constitutional.42
Whether the requirement in section 3(3) of spousal consent for an abortion during the first twelve weeks of pregnancy is constitutional?43
No. The established facts show that section 3(3) requires the written consent of the woman's spouse during the first twelve weeks unless the abortion is certified necessary to preserve the life of the mother.47 The Supreme Court reversed the district court.48 It held that the state cannot delegate to a spouse a veto power the state itself is prohibited from exercising.49
The facts establish that the plaintiffs challenged the provision as granting the husband unilateral power to prevent abortion.50 The Court recognized the profound effects on marriage.51 It concluded the balance weighs in the woman's favor because she physically bears the child.52
The spousal consent requirement in section 3(3) is unconstitutional.53
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Joined by The Chief Justice And Justice Rehnquist
Justice White dissented from the invalidation of the spousal consent requirement.54 He argued that the state is not delegating its own interest in potential life.55 Instead the statute recognizes the husband's independent interest in the life of the fetus which the state may protect.56
Missouri law already prevents a woman from placing a child for adoption over the husband's objection.57 The same judgment supports section 3(3).58 White concluded that these are matters a state should decide free from federal judicial interference under the Constitution.59
Whether the requirement in section 3(4) of parental consent for an unmarried minor seeking an abortion during the first twelve weeks of pregnancy is constitutional?60
A state may not impose a blanket parental consent requirement as a condition for an abortion by an unmarried minor during the first twelve weeks.61 Constitutional rights do not mature only at the state-defined age of majority.62 The state lacks authority to give a third party an absolute veto over the decision.63
No. The established facts show that section 3(4) requires written consent of one parent or person in loco parentis for an unmarried woman under eighteen during the first twelve weeks unless certified necessary to preserve the mother's life.64 The district court upheld the provision on the state's interest in safeguarding family authority.65 The Supreme Court reversed.66
It held that the state may not give a third party an absolute and possibly arbitrary veto.67 The facts establish that Missouri law allows minors to consent to other medical services for pregnancy and venereal disease.68 The Court concluded the provision violates Roe and Doe without sufficient justification.69
The parental consent requirement in section 3(4) is unconstitutional.70
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Justice Stevens dissented in part and would have upheld the parental consent requirement.71 He reasoned that the state's interest in the welfare of its young citizens justifies a variety of protective measures.72 The abortion decision has a profound impact on a minor's future life.73
This impact supports requiring parental involvement to maximize the probability of a correct decision made with full understanding of the consequences.74 Stevens noted that chronological age has long served as the basis for imposing restraints on minors even when the yardstick is imprecise in particular cases.75 He concluded that the state's interest is sufficient to support the requirement.76
Whether the prohibition in section 9 on the use of saline amniocentesis after the first twelve weeks of pregnancy is constitutional?77
No. The established facts show that section 9 prohibits saline amniocentesis after the first twelve weeks on the legislative finding that the method is deleterious to maternal health.80 The district court upheld the ban.81 The Supreme Court reversed because the record demonstrated saline is the method used in 68 to 80 percent of post-first-trimester abortions and is safer than childbirth.82
The facts establish that prostaglandin was not widely available in Missouri at the time of trial. The ban forces women to use more dangerous methods.83 The Court concluded the prohibition is an unreasonable regulation designed to inhibit abortions.84
The prohibition on saline amniocentesis in section 9 is unconstitutional.85
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Joined by The Chief Justice And Justice Rehnquist
Justice White dissented from the invalidation of the saline amniocentesis ban.86 He argued that the majority improperly made a factual finding that prostaglandin was unavailable.87 The record showed it was becoming available and the legislature could reasonably conclude the ban would promote safer methods.88
White stated that absent proof of unavailability the statute should stand.89 He concluded that the point of the provision is to change medical practice and make safer methods generally available, a goal the legislature could legitimately pursue.90
Whether the recordkeeping and reporting requirements in sections 10 and 11 are constitutional?91
Recordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health are permissible.92 They must properly respect patient confidentiality.93 They are allowed even in the first trimester provided they do not significantly burden the abortion decision or the physician-patient relationship.94
Yes. The established facts show that sections 10 and 11 require health facilities and physicians to maintain records for seven years using state-supplied forms for statistical purposes with confidentiality protections except for public health officers.95 The district court unanimously upheld the provisions as essential to medical knowledge without restricting the abortion decision.96 The Supreme Court concluded that the requirements while approaching impermissible limits are not constitutionally offensive because they assist the state's interest in protecting female health.97
They will not be used to accomplish otherwise unconstitutional restrictions.98
The recordkeeping and reporting requirements in sections 10 and 11 are constitutional.99
Whether the standard of care provision in section 6(1) requiring physicians to preserve the life and health of the fetus is constitutional?100
No. The established facts show that section 6(1) requires the person performing an abortion to exercise the 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.103 The district court unanimously held the first sentence unconstitutionally overbroad because it failed to exclude the pre-viability stage.104 The Supreme Court agreed that the provision impermissibly requires preservation of the fetus whatever the stage of pregnancy.105
The second sentence is inextricably bound to the first so the entire section must fall.106
The standard of care provision in section 6(1) is unconstitutional.107
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Joined by The Chief Justice And Justice Rehnquist
Justice White dissented from the invalidation of section 6(1).108 He argued that the provision is intended to require that where a fetus may have the capability of meaningful life outside the mother's womb the abortion be handled in a way designed to preserve that life notwithstanding the mother's desire to terminate it.109 The second sentence requiring care for a live-born child is plainly constitutional and unobjectionable.110
White urged that at worst the section is ambiguous and the District Court should be directed to abstain until a construction may be had from the state courts.111 He concluded that the majority's reading attributes to the Missouri Legislature the strange intention of passing a statute with absolutely no chance of surviving constitutional challenge under Roe v. Wade.112