THE ABORTION DECISION : EXCERPTS: ‘The Signs Are . . . Ominous, a Chill Wind Blows’

Following are excerpts from the majority and dissenting opinions in the Supreme Court decision upholding the authority of states to regulate abortion.

The Majority Opinion

Chief Justice William H. Rehnquist:

In June, 1986, the governor of Missouri signed into law Missouri Senate Committee Substitute for House Bill No. 1596 (hereinafter act or statute), which amended existing state law concerning unborn children and abortions.

The act consisted of 20 provisions, five of which are now before the court. The first provision, or preamble, contains “findings” by the state Legislature that “the life of each human being begins at conception,” and that “unborn children have protectable interests in life, health, and well-being.” The act further requires that all Missouri 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. Among its other provisions, the act requires that, prior to performing an abortion on any woman whom a physician has reason to believe is 20 or more weeks pregnant, the physician ascertain whether the fetus is viable by performing “such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child.” The act also prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother’s life, and it prohibits the use of public funds, employees, or facilities for the purpose of “encouraging or counseling” a woman to have an abortion not necessary to save her life.

The act’s preamble, as noted, sets forth “findings” by the Missouri Legislature that “the life of each human being begins at conception,” and that “unborn children have protectable interests in life, health, and well-being.” The act then mandates that state laws be interpreted to provide unborn children with “all the rights, privileges, and immunities available to other persons, citizens, and residents of this state,” subject to the Constitution and this court’s precedents. In invalidating the preamble, the Court of Appeals relied on this court’s dictum that “ ‘a state may not adopt one theory of when life begins to justify its regulation of abortions.’ ” It rejected Missouri’s claim that the preamble was “abortion-neutral,” and “merely determined when life begins in a non-abortion context, a traditional state prerogative”. . . .

In our view, the Court of Appeals misconceived the meaning . . . which was only that a state could not “justify” an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the state’s view about when life begins. . . .

It will be time enough for federal courts to address the meaning of the preamble should it be applied to restrict the activities of appellees in some concrete way. Until then, this court “is not empowered to decide . . . abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it.” We therefore need not pass on the constitutionality of the act’s preamble.

Section 188.210 provides that “it shall be unlawful for any public employee within the scope of his employment to perform or assist an abortion, not necessary to save the life of the mother,” while 188.215 makes it “unlawful for any public facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother.” The Court of Appeals held that these provisions contravened this court’s abortion decisions. We take the contrary view. . . .

The (appeals) court reasoned that the ban on the use of public facilities “could prevent a woman’s chosen doctor from performing an abortion because of his unprivileged status at other hospitals or because a private hospital adopted a similar anti-abortion stance.” It also thought that “such a rule could increase the cost of obtaining an abortion and delay the timing of it as well.”

We think that this analysis is much like that which we rejected in (four other cases). As in those cases, the state’s decision here to use public facilities and staff to encourage childbirth over abortion “places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy” . . . .

Missouri’s refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the state had chosen not to operate any public hospitals at all. The challenged provisions only restrict a woman’s ability to obtain an abortion to the extent that she chooses to use a physician affiliated with a public hospital. This circumstance is more easily remedied, and thus considerably less burdensome than indigency which “may make it difficult--and in some cases, perhaps, impossible--for some women to have abortions” without public funding. Having held that the state’s refusal to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use of public facilities and employees. . . .

(Three previous cases) all support the view that the state need not commit any resources to facilitating abortions, even if it can turn a profit by doing so. . . . Thus we uphold the act’s restrictions on the use of public employees and facilities for the performance or assistance of non-therapeutic abortions.

The Missouri act contains three provisions relating to “encouraging or counseling a woman to have an abortion not necessary to save her life.” Section 118.205 states that no public funds can be used for this purpose; 188.210 states that public employees cannot, within the scope of their employment, engage in such speech; and 188.215 forbids such speech in public facilities. The Court of Appeals . . . held that all three of these provisions were unconstitutionally vague and that “the ban on using public funds, employees and facilities to encourage or counsel a woman to have an abortion is an unacceptable infringement of the woman’s 14th Amendment right to choose an abortion after receiving the medical information necessary to exercise the right knowingly and intelligently.”

Missouri has chosen only to appeal the Court of Appeals’ invalidation of the public funding provision. . . . A majority of the court agrees with appellees that the controversy . . . is now moot. . . . We accordingly direct the Court of Appeals to vacate the judgment of the District Court with instructions to dismiss the relevant part of the complaint. . . .

Section 188.029 of the Missouri act provides:

“Before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of 20 or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viability in the medical record of the mother.”

As with the preamble, the parties disagree over the meaning of this statutory provision. . . .

The Court of Appeals read 188.029 as requiring that after 20 weeks “doctors must perform tests to find gestational age, fetal weight and lung maturity.” The court indicated that the tests needed to determine fetal weight at 20 weeks are “unreliable and inaccurate” and would add $125 to $250 to the cost of an abortion. . . .

We must first determine the meaning of 188.029 under Missouri law. Our usual practice is to defer to the lower court’s construction of a state statute, but we believe the Court of Appeals has “fallen into plain error” in this case. . . .

We think the viability-testing provision makes sense only if the second sentence is read to require only those tests that are useful in making subsidiary findings as to viability. . . .

The viability-testing provision of the Missouri act is concerned with promoting the state’s interest in potential human life rather than in maternal health. . . .

In Roe v. Wade, the court recognized that the state has “important and legitimate” interests in protecting maternal health and in the potentiality of human life. During the second trimester, the state “may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.”

In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework--trimesters and viability--are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. . . .

In the second place, we do not see why the state’s interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. . . .

The tests that 188.029 requires the physician to perform are designed to determine viability. . . . We are satisfied that the requirement of these tests permissibly furthers the state’s interests in protecting human life and we therefore believe 188.029 to be constitutional.

The dissent’s suggestion . . . that legislative bodies, in a nation where more than half of our population is women, will treat our decision today as an invitation to enact abortion regulation reminiscent of the dark ages not only misreads our views but does scant justice to those who serve in such bodies and the people who elect them.

Both appellants and the United States have urged that we overrule our decision in Roe v. Wade. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother’s life was at stake. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the due process clause, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.

Because none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution, the judgment of the Court of Appeals is reversed.

Viability of Fetus

Justice Sandra Day O’Connor:

In its interpretation of Missouri’s “determination of viability” provision . . . the plurality has proceeded in a manner unnecessary to deciding the question at hand. I agree with the plurality that it was plain error for the Court of Appeals to interpret the second sentence of Mo. Rev. Stat. 188.029 as meaning that “doctors must perform tests to find gestational age, fetal weight and lung maturity.” When read together with the first sentence of 188.029--which requires a physician to “determine if the unborn child is viable by using and exercising that degree of care, skill and proficiency commonly exercised by the ordinary skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions”--it would be contradictory nonsense to read the second sentence as requiring a physician to perform viability examinations and tests in situations where it would be careless and imprudent to do so. . . .

Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the court’s past decisions concerning state regulation of abortion. Therefore, there is no necessity to accept the state’s invitation to reexamine the constitutional validity of Roe v. Wade. Where there is no need to decide a constitutional question, it is a venerable principle of this court’s adjudicatory processes not to do so. . . . The court today has accepted the state’s every interpretation of its abortion statute and has upheld, under our existing precedents, every provision of that statute which is properly before us. Precisely for this reason reconsideration of Roe falls not into any “good-cause exception” to this “fundamental rule of judicial restraint” . . . . When the constitutional invalidity of a state’s abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully.

The Dissenting Opinion

Justice Harry A. Blackmun:

Today, Roe v. Wade, and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive but are not secure. Although the court extricates itself from this case without making a single, even incremental, change in the law of abortion, the plurality and Justice (Antonin) Scalia would overrule Roe (the first silently, the other explicitly) and would return to the states virtually unfettered authority to control the quintessentially intimate, personal, and life-directing decision whether to carry a fetus to term. Although today, no less than yesterday, the Constitution and the decisions of this court prohibits a state from enacting laws that inhibit women from the meaningful exercise of that right, a plurality of this court implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that sometime down the line the court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22, 1973. Never in my memory has a plurality announced a judgment of this Court that so foments disregard for the law and for our standing decisions.

Nor in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute, to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe “undisturbed,” albeit “modif(ied) and narrow(ed). . . . But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman’s right under the due process clause to terminate a pregnancy free from the coercive and brooding influence of the state. The simple truth is that Roe would not survive the plurality’s analysis, and that the plurality provides no substitute for Roe’s protective umbrella.

I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this court. . . The plurality pretends that Roe survives, explaining that the facts of this case differ from those in Roe: Here, Missouri has chosen to assert its interest in potential life only at the point of viability, whereas, in Roe, Texas had asserted that interest from the point of conception, criminalizing all abortions, except where the life of the mother was at stake. This, of course, is a distinction without a difference. The plurality repudiates every principle for which Roe stands; in good conscience, it cannot possibly believe that Roe lies “undisturbed” merely because this case does not call upon the court to reconsider the Texas statute, or one like it. If the Constitution permits a state to enact any statute that reasonably furthers its interest in potential life, and if that interest arises as of conception, why would the Texas statute fail to pass muster? One suspects that the plurality agrees. It is impossible to read the plurality opinion and especially its final paragraph, without recognizing its implicit invitation to every state to enact more and more restrictive abortion laws, and to assert their interest in potential life as of the moment of conception. . . .

Thus, “not with a bang, but a whimper,” the plurality discards a landmark case of the last generation, and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children. The plurality does so either oblivious or insensitive to the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life. The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term. The plurality would clear the way again for the state to conscript a woman’s body. . . .

The result, as we know from experience . . . would be that every year hundreds of thousands of women, in desperation, would defy the law, and place their health and safety in the unclean and unsympathetic hands of back-alley abortionists, or they would attempt to perform abortions upon themselves, with disastrous results. Every year, many women, especially poor and minority women, would die or suffer debilitating physical trauma, all in the name of enforced morality or religious dictates or lack of compassion, as it may be. . . .

For today, at least, the law of abortion stands undisturbed. For today, the women of this nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.

I dissent.

On Overturning Roe

Justice Antonin Scalia:

I share Justice Blackmun’s view . . . that it effectively would overrule Roe vs. Wade . . . I think that should be done, but would do it more explicitly. . . .

The outcome of today’s case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this court’s self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political, not juridical--a sovereignty which therefore quite properly, but to the great damage of the court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.

Justice O’Connor’s assertion . . . that a “fundamental mental rule of judicial restraint” requires us to avoid reconsidering Roe, cannot be taken seriously. By finessing Roe, we do not, as she suggests . . . adhere to the strict and venerable rule that we should avoid “deciding questions of a constitutional nature.”

We have not disposed of this case on some statutory or procedural ground, but have decided--and could not avoid deciding--whether the Missouri statute meets the requirements of the United States Constitution. . . .

The real question, then, is whether there are valid reasons to go beyond the most stingy possible holding today. It seems to me there are not only valid, but compelling ones.

Ordinarily, speaking no more broadly than is absolutely required avoids throwing settled law into confusion; doing so today preserves a chaos that is evident to anyone who can read and count.

Alone sufficient to justify a broad holding is the fact that our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be a political issue, continuously distorts the public perception of the role of this court.

We can now look forward to at least another term with carts full of mail from the public and streets full of demonstrators, urging us--their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will--to follow the popular will.

Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today. And if these reasons for taking the unexceptional course of reaching a broader holding are not enough, then consider the nature of the constitutional question we avoid: In most cases, we do no harm by speaking more broadly than the decision requires. Anyone affected by the conduct that the avoided holding would have prohibited will be able to challenge it himself, and have his day in court to make the argument.

Not so with respect to the harm that many states believed, pre-Roe, and many may continue to believe, is caused by largely unrestricted abortion. That will continue to occur if the states have the constitutional power to prohibit it, and would do so, but we skillfully avoid telling them so. Perhaps those abortions cannot constitutionally be proscribed. That is surely an arguable question--the question that reconsideration of Roe vs. Wade entails.

But what is not at all arguable, it seems to me, is that we should decide now and not insist that we be run into a corner before we grudgingly yield up our judgment. The only reason for the latter course is to prevent a change in the law--but to think that desirable begs the question to be decided. . . .

On the question of constitutionality (of the Missouri statute) . . . I concur in the judgment of the court and strongly dissent from the manner in which it has been reached.