Planned Parenthood v. Danforth (1976)

In Depth

Background

In 1974, the Missouri General Assembly enacted a comprehensive abortion law (House Committee Substitute for House Bill No. 1211).  Among other provisions, the law defined viability; prohibited the use of saline amniocentesis abortions after the first twelve weeks of pregnancy; required the written consent of the woman upon whom an abortion was to be performed; required the written consent of the husband of a woman upon whom an abortion was to be performed (unless the procedure was necessary to preserve her life); required the written consent of one of the parents of an unmarried minor before she could undergo an abortion (subject to the same exception); declared a child born alive as the result of an abortion that was not performed to save the life or health of the mother an "abandoned  ward of the state" and terminated the mother's parental rights and obligations, as well as the father's, if he consented to the abortion; mandated a standard of care on physicians performing abortions; and prescribed certain recordkeeping and reporting requirements.

Planned Parenthood of Central Missouri and two physicians who perform abortions brought a class action lawsuit in federal district court against the Missouri Attorney General and a class of county prosecutors, alleging that the provisions of the law violated the constitutional rights of physicians and those of their patients.  Plaintiffs sued on their own behalf, as well as on behalf of a class of physicians performing abortions and a class of female patients who would want to terminate their pregnancies.  A three-judge district court upheld all of the challenged provisions of the law except the standard of care, which the  court determined was overbroad.

The Statutes Under Review

Section 2(2) of the Act defined "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."

Under § 3(2), no abortion could be performed upon a woman prior to the end of the twelfth week of pregnancy unless, prior to submitting to the abortion, she certified in writing "her consent to the abortion and that her consent is informed and freely given and is not the result of coercion." Section 4, which was not challenged, applied the consent requirement to abortions performed subsequent to the first twelve weeks of pregnancy, and added a hospitalization requirement.

Under § 3(3), no abortion could be performed upon a woman prior to the end of the twelfth week of pregnancy without "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."  Section 4, which was not challenged, applied the spousal consent requirement to abortions performed subsequent to the first twelve weeks of pregnancy, and added a hospitalization requirement.

Under § 3(4), no abortion could be performed upon a woman prior to the end of the twelfth week of pregnancy without "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."  Section 4, which was not challenged, applied the parental consent requirement to abortions performed subsequent to the first twelve weeks of pregnancy, and added a hospitalization requirement.

Section 6(1) provided, in part, that "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."

Section 7 provided:

In every case where a live born infant results from an attempted abortion which was not performed to save the life or health of the mother, such infant shall be an abandoned ward of the state, under the jurisdiction of the juvenile court wherein the abortion occurred, and the mother and father, if he consented to the abortion, of such infant, shall have no parental rights or obligations whatsoever relating to such infant, as if the parental rights had been terminated pursuant [to law].  The attending physician shall forthwith notify said juvenile court of the existence of such live born infant.

Section 9 prohibited "the method or technique of abortion known as saline amniocentesis whereby the amniotic fluid is withdrawn and a saline or other fluid is inserted into the amniotic sac for the purpose of killing the fetus and artificially inducing labor . . . after the first twelve weeks of pregnancy" as "deleterious to maternal health."

Sections 10 and 11 prescribed certain recordkeeping and reporting requirements.

The Court's Holding

The Court unanimously upheld the definition of viability, § 2(2); the requirement that the woman give her written consent, §§ 3(2) and 4; and the recordkeeping and reporting requirements, §§ 10, 11.  The Court also unanimously held that the plaintiffs lacked standing to challenge § 7, which dealt with the termination of parental rights of a child born alive as the result of an abortion that was not performed to preserve the mother's life or health.  The Court, however, was divided, on the other provisions of the law.  By a six-to-three vote, the Court struck down the spousal consent requirement, § 3(3), the standard of care, § 6(1), and the ban on saline amniocentesis abortions, § 9, and by a vote of five-to-four, the Court struck down the parental consent requirement, § 3(4).

The Court's Reasoning

Termination of Parental Rights from the Live Birth of an Aborted Child

The Court unanimously determined that the plaintiffs lacked standing to challenge § 7 of the law (terminating the parental rights of the mother and, if he consented to the abortion, the father, of a child born alive as the result of an abortion that was not necessary to save the mother's life or health) because § 7 imposed no obligations upon them or otherwise injured them in the practice of their profession.

Definition of Viability

The plaintiffs objected to the "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."  Danforth, 428 U.S. at 63 (summarizing plaintiffs' objections).  According to plaintiffs, § 2(2) expanded the definition of viability set forth in Roe v. Wade, 410 U.S. 113 (1973), and amounted to "a legislative determination of what is properly a matter for medical judgment."  Danforth, 428 U.S. at 63 (summarizing plaintiffs' argument).  Finally, plaintiffs stated that the " 'mere possibility of momentary survival is not the medical standard of viability.' " Id. (quoting plaintiffs' brief).

The Court unanimously rejected plaintiffs' argument, holding that "the definition of viability in the Act does not conflict with what was said and held in Roe." Danforth, 428 U.S. at 63. The definition was understandable and medically acceptable.  Indeed, it could be argued that the use of the words "continued indefinitely" in the definition gave a narrower scope to the meaning of viability that what was contemplated by the Court in Roe, which defined viability solely in terms of the fetus being " 'potentially able to live outside the mother's womb.' " Id. (quoting Roe, 410 U.S. at 160).  The definition of viability in § 2(2)  "preserved the flexibility of the term" by leaving the determination of viability up to the "medical judgment, skill, and technical ability" of the physician performing the abortion.  Id. at 64.  "[I]t is not the proper function of either the legislature or the courts "to place viability, which is essentially a medical concept, at a specific point in the gestation period."  Id. The point at which viability is reached "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."  Id.  Accordingly, the Court rejected the plaintiffs' contention that "a specified number of weeks in pregnancy must be fixed by the statute as the point of viability." Id. at 65.

The Woman's Consent

The plaintiffs claimed that § 3(2), which requires the woman's written consent prior to the performance of an abortion, was invalid because it imposed "an extra layer of regulation on the abortion decision," not permitted by Roe v. Wade and Doe v. Bolton, 410 U.S. 179 (1973), and because it was "overbroad and vague."  Danforth, 428 U.S. at 65-66 (summarizing plaintiffs' argument).  The basis for plaintiffs' claim was that Roe does not permit regulation of the abortion decision before the end of the first trimester and, therefore, the written consent requirement was overbroad.

The Court unanimously rejected plaintiffs' claim.  Notwithstanding language in Roe and Doe indicating that "the State may not restrict the decision of the patient and her physician regarding abortion during the first stage of pregnancy," Danforth, 428 U.S. at 66, the Court found no infirmity in requiring the written consent of the pregnant woman before she undergoes an abortion, even in the first trimester.  The Court explained;

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.

Id. at 67.

The State could require a prior written consent for any surgery.  Danforth, 428 U.S. at 67.  "As a consequence," the Court concluded, "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 certain specified mortality level, or, for that matter, for abortions."  Id.

Spousal Consent

The plaintiffs argued that § 3(3), requiring the consent of the woman's spouse before an abortion could be performed upon her during the first twelve weeks of pregnancy, if she was married at the time the abortion was to be performed, was designed "to afford the husband the right unilaterally to prevent or veto an abortion, whether or not he is the father of the fetus," which, they claimed, violated both Roe v. Wade and Doe v. Bolton.  Danforth, 428 U.S. at 68-69 (summarizing plaintiffs' argument).

By a six-to-three vote, the Court accepted plaintiffs' argument and struck down the spousal consent requirement.  Danforth, 428 U.S. at 69 ("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").  The majority reasoned that, because "the State cannot regulate or proscribe abortion during the first stage [of pregnancy], when the physician and the patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period."  Id.  The majority recognized the "deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth of development of the fetus she is carrying," "the importance of the marital relationship in our society," and the "profound effects on the future of any marriage" of a decision "whether to undergo or forgo an abortion."  Id. at 69-70.  Notwithstanding these factors, the State lacks "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."  Id. at 70.  Of course, "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."  Id. at 71.  Nevertheless, the fact remains "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."  Id.  Although the Court's opinion dealt only with a spousal consent requirement that applied during the first trimester of pregnancy (§ 4 of the law, which required spousal consent for any abortion performed after the twelfth week of pregnancy was not challenged), the majority's reasoning would prevent the State from enforcing such a requirement at any stage of pregnancy.

Parental Consent

The plaintiffs argued that § 3(4), requiring the consent of one of the woman's parents before an abortion could be performed upon her during the first twelve weeks of pregnancy, if she was under the age of eighteen and unmarried, was unconstitutional because it interfered with her right to obtain an abortion.  Danforth, 428 U.S. at 73.

By a vote of five-to four, the Court accepted plaintiffs' argument and struck down the parental consent requirement.  Danforth, 428 U.S. at 74 ( "the State may not impose a blanket provision, such as § 3(4), requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy").  As in the case § 3(3), requiring spousal consent, "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, regardless of the reason for withholding the consent." Id. The majority recognized that "the State has somewhat broader authority to regulate the activities of children than of adults," but found no "significant state interest in conditioning an abortion on the consent of a parent or person in loco parentis that is not present in the case of an adult."  Id. at 74-75.  One suggested interest was the State's interest in safeguarding the family unit and parental authority.  Id. at 75.  The majority, however, did not find this interest strong enough to justify the requirement of parental consent:

It is difficult . . . to conclude that providing a parent with absolute power to overrule a determination, made by the physician and his minor patient, to terminate the patient's pregnancy will serve to strengthen the family unit.  Neither is it likely that such veto power will enhance parental authority or control where the minor and the nonconsenting parent are so fundamentally in conflict and the very existence of the pregnancy already has fractured the family structure.  Any independent interest the parent may have in the termination of the minor daughter's pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant.

Id. Although the Court's opinion dealt only with a parental consent requirement that applied during the first trimester of pregnancy (§ 4 of the law, which required parental consent for any abortion performed after the twelfth week of pregnancy was not challenged), the majority's reasoning would prevent the State from enforcing such a requirement at any stage of pregnancy.

In a coda to this part of its opinion, the Court emphasized that its holding striking down § 3(4) was not meant to suggest "that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy."  Danforth, 428 U.S. at 75 (citing Bellotti v. Baird, 428 U.S. 132 (1976).  "The fault with § 3(4)," the Court held, "is that it imposes a special-consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's termination of her pregnancy and does so without a sufficient justification for the restriction."  Id.  In Bellotti, which was decided the same day as Danforth, the Court, without actually deciding the issue (the district court's judgment was vacated on abstention grounds), suggested that the State might have the authority to require parental consent so long as there is a mechanism by which consent may be waived in the case of mature minors and in the case of minors for whom obtaining parental consent would not be in their best interests.  For an analysis of the issues decided in Bellotti, please see the summary for that case.

Saline Amniocentesis

The plaintiffs argued that § 9, prohibiting the use of saline amniocentesis, as a method or technique of abortion, after the first twelve weeks of pregnancy, was unconstitutional because it effectively precluded "virtually all abortions after the first trimester."  Danforth, 428 U.S. at 76 (summarizing plaintiffs' argument).  According to evidence presented by the plaintiffs, upwards of 70% of the abortions performed in the United States after the first trimester were then effected through the procedure of saline amniocentesis. Id.  The alternative methods of hysterotomy and hysterectomy are significantly more dangerous than saline amniocentesis which, in turn, is safer than childbirth.  Id.  Although there was an alternative, and possibly safer, method of performing abortions after the first trimester (prostaglandin instillation), that method was not widely used, at least at the time of trial.  Id.

By a vote of six-to-three (Justice Stevens separately concurring), the Court struck down the ban on the saline amniocentesis method or procedure of abortion.  Danforth, 428 U.S. at 77-79.  The majority recognized that, under Roe, " 'the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.' " Id. at 76 (quoting Roe, 410 U.S. at 164).  The issue, therefore, with respect to § 9 was whether "the flat prohibition of saline amniocentesis is a restriction which 'reasonably relates to the preservation and protection of maternal health.' " Id. (quoting Roe, 410 U.S. at 163).  Because maternal mortality associated with childbirth is higher than that associated with the saline amniocentesis method of abortion, § 9 could be justified only if there were alternative methods of abortion that were safer than saline amniocentesis.  Id. at 77.  As a safer alternative to saline amniocentesis, the State pointed to the prostaglandin technique, which, like saline, induces premature labor, but by a different means (prostaglandin instead of saline).  Id.  The majority, however, discounted prostaglandin instillation as a safe and available alternative to saline amniocentesis.  First, saline amniocentesis, at the time of trial, was used in a substantial majority of all post-first-trimester abortions.  Id. Second, the prostaglandin technique was available only on an experimental basis.  Id. Third, § 9's reference to the insertion of "a saline or other fluid" arguably included within its proscription "the intra-amniotic injection of prostaglandin itself and other methods that may be developed in the future and that may prove highly effective and completely safe."  Id. at 78.  Finally, § 9 was anomalous in that it prohibited the use of saline, but not methods of abortion that are much more likely to result in maternal death (specifically, hysterotomy and hysterectomy).  Id. The majority concluded that "the outright legislative proscription of saline fails as a reasonable regulation for the protection of maternal health."  Id. at 79.  Instead, it 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.  As such, it does not withstand constitutional scrutiny."  Id.

The Standard of Care

As previously noted, the first sentence of § 6(1) provided:  "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."  The plaintiffs argued that this language was unconstitutional because it applied throughout pregnancy, not just after viability, and that it "effectively precludes abortion . . . ."  Danforth, 428 U.S. at 82 (summarizing plaintiffs' argument).  Although the State disputed this characterization, the Court, by a six-to-three vote, agreed with plaintiffs and declared the first sentence of § 6(1) unconstitutional.

Section 6(1) requires the physician to exercise the prescribed skill, care, and diligence to preserve the life and health of the fetus. It does not specify that such care need be taken only after the stage of viability has been reached.  As the provision now reads, it impermissibly requires the physician to preserve the life and health of the fetus, whatever the stage of pregnancy.

Id. at 83 (emphasis in original).  The majority held that the remainder of § 6(1), which provided civil and criminal penalties for any physician or anyone else assisting in the abortion who failed "to take such measures to encourage or to sustain the life of the child," could not be severed from the first sentence and the entire section had to stand or fall as a unit.  Id. The opinion noted, however, that "a physician's or other person's criminal failure to protect a liveborn infant surely will be subject to prosecution in Missouri under the State's criminal statutes."  Id. at 83-84.

Recordkeeping and Reporting

The plaintiffs argued that the recordkeeping and reporting requirements of §§ 10 and 11 imposed "an extra layer and burden of regulation," and applied "throughout all stages of pregnancy" in violation of the trimester scheme established in Roe.  Danforth, 428 U.S. at 79-80 (summarizing argument).  The Court unanimously rejected plaintiffs' argument and upheld §§ 10 and 11.

The Court said that "[r]ecordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible."  Danforth, 428 U.S. at 80.  Such requirements were permissible not only after the first stage of pregnancy, at which point "the State may enact substantive as well as recordkeeping regulations that are reasonably means of protecting material health," but also during "the first stage [of pregnancy]."  Id.  The recordkeeping and reporting required by §§ 10 and 11, "if not abused or overdone, can be useful to the State's interest in protecting the health of its female citizens, and may be a resource that is relevant to decisions involving medical experience and judgment."  Id. at 81.  "The added requirements for confidentiality, with the sole exception for public health officers, and for retention for seven years, a period not unreasonable in length, assist and persuade us in our determination of the constitutional limits."  Id. The Court upheld the two sections, finding "no legally significant impact or consequence on the abortion decision or on the physician-patient relationship." Id.

The Concurring And Dissenting Opinions

Justice Stewart, joined by Justice Powell, joined in the Court's opinion, but wrote separately to express his understanding of the issues raised in the litigation.  The definition of viability, in Justice Stewart's opinion, had little legal significance because it merely required physicians "to certify that the fetus to be aborted is not viable." Danforth, 428 U.S. at 89 (Stewart, J., concurring) (emphasis in original).  It provided no punishment for a physician's erroneous conclusion that the fetus was not viable.  Id.  Justice Stewart agreed that the parental consent requirement, § 3(4), was unconstitutional, but principally because it imposed "an absolute limitation on the minor's right to abortion."  Id. at 90.  He added that "a materially different constitutional issue would be presented under a provision requiring parental consent or consultation in most cases but providing for prompt (i) judicial resolution of any disagreement between the parent and the minor, or (ii) judicial determination that the minor is mature enough to give an informed consent without parental concurrence or that abortion in any event is in the minor's best interest." Id. at 90-91.  "Such a provision," he said, "would not impose parental approval as an absolute condition upon the minor's right but would assure in most instances consultation between the parent and child."  Id. at 91.  Justice Stewart articulated the reasons for his conclusion that parents should be involved in their pregnant minor's abortion decision:

There can be little doubt that the State further a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child.  That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support.  It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.

Id.

Justice Stevens concurred in part and dissented in part.  He did not join that part of the majority's opinion striking down the prohibition of the saline amniocentesis method of abortion, § 9, but agreed that it was unconstitutional for substantially the same reason (because it was "almost tantamount to a prohibition of any abortion in the State after the first 12 weeks of pregnancy," which "is inconsistent with the essential holding of Roe v. Wade and, therefore, cannot stand"). Danforth, 428 U.S. at 102 (Stevens, J., concurring in part and dissenting in part).

Justice Stevens devoted the bulk of his concurring and dissenting opinion disagreeing with the majority's decision to strike down the parental consent requirement. Danforth, 428 U.S. at 102-05 (Stevens, J., concurring in part and dissenting in part).  The importance of the decision whether to carry a pregnancy to term or to undergo an abortion "merely enhances the quality of the State's interest in maximizing the probability that the decision be made correctly and with full understanding of the consequences of either alternative."  Id. at 103.  Because "the most significant consequences of the decision are not medical in character," "it would seem . . . that the State may, with equal legitimacy, insist that the decision be made only after other appropriate counsel has been had as well."  Id.

Whatever choice a pregnant young woman makes-to marry, to abort, to bear her child out of wedlock-the consequences of her decision may have a profound impact on her entire future life.  A legislative determination that such a choice will be made more wisely in most cases if the advice and moral support of a parent play a part in the decisionmaking process is surely not irrational.

Id. The assumption that "the parental reaction will be hostile, disparaging, or violent no doubt persuades many children simply to bypass parental counsel which would in fact be loving, supportive, and, indeed, for some indispensable."  Id.  Justice Stevens thought it was "unrealistic" to assume "that every parent-child relationship is either (a) so perfect that communication and accord will take place routinely or (b) so imperfect that the absence of communication reflects the child's correct prediction that the parent will exercise his or her veto arbitrarily to further a selfish interest rather than the child's interest."  Id. at 103-04.  "A state legislature may conclude that most parents will be primarily interested in the welfare of their children, and further, that the imposition of a parental-consent requirement is an appropriate method of giving the parents an opportunity to foster that welfare by helping a pregnant distressed child to make and implement a correct decision."  Id. at 104.  Justice Stevens concluded his dissent by stating that "the State's interest in the welfare of its young citizens is sufficient . . . to support the parental-consent requirement."  Id. at 105.

Justice White, joined by Chief Justice Burger and Justice Rehnquist, concurred in part and dissented in part.  Justice White disagreed with the majority's characterization of the spousal consent requirement, § 3(3).  Contrary to the majority's view, the State was not "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."  Danforth, 428 U.S. at 93 (White, J., concurring in part and dissenting in part) (emphasis in original).  "A father's interest in having a child-perhaps his only child-may be unmatched by any other interest in his life."  Id.  Justice White found no basis in the Constitution for 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."  Id.

Justice White also dissented from the majority's decision to strike down the parental consent requirement, § 3(4).  This requirement, he wrote, was intended "to vindicate the very right created in Roe v. Wade, . . . the right of the pregnant woman to decide 'whether or not to terminate her pregnancy.' " Danforth, 428 U.S. at 94-95 (White, J., concurring in part and dissenting in part) (quoting Roe v. Wade, 410 U.S. at 153) (emphasis added by Justice White).  "The abortion decision is unquestionably important and has irrevocable consequences whichever way it is made."  Id. at 95. Accordingly, the State "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," which is "the traditional way by which States have sought to protect children from their own immature and improvident decisions . . . ." Id.

Justice White dissented from the majority's decision to strike down the ban on the saline amniocentesis method of abortion.  His dissent was based entirely on a dispute with the majority as to the availability of the prostaglandin instillation method of abortion as a safe alternative to saline amniocentesis) (since Danforth was decided, prostaglandin abortions have largely replaced saline abortions, which are seldom performed anymore).

Finally, Justice White dissented from the majority's decision striking down the "standard of care" mandated by § 6(1).  In Justice White's view, § 6(1) should have been read to impose a standard of care only upon physicians performing post-viability abortions, not otherwise. Danforth, 428 U.S. at 99-101 (White, J., concurring in part and dissenting in part).