Webster v. Reproductive Health Services

Document Text

William Rehnquist: Majority Opinion

CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, and an opinion with respect to Parts II-D and III, in which JUSTICE WHITE and JUSTICE KENNEDY join.

This appeal concerns the constitutionality of a Missouri statute regulating the performance of abortions. The United States Court of Appeals for the Eighth Circuit struck down several provisions of the statute on the ground that they violated this Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), and cases following it. We noted probable jurisdiction, 488 U.S. 1003 (1989), and now reverse.

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, 5 of which are now before the Court. The first provision, or preamble, contains “findings” by the state legislature that “[t]he life of each human being begins at conception,” and that “unborn children have protectable interests in life, health, and wellbeing.” … 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.

§ 188. 029. 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. …

In July, 1986, five health professionals employed by the State and two nonprofit corporations brought this class action in the United States District Court for the Western District of Missouri to challenge the constitutionality of the Missouri statute. Plaintiffs, appellees in this Court, sought declaratory and injunctive relief on the ground that certain statutory provisions violated the First, Fourth, Ninth, and Fourteenth Amendments to the Federal Constitution. App. A9. They asserted violations of various rights, including the “privacy rights of pregnant women seeking abortions”; the “woman’s right to an abortion”; the “righ[t] to privacy in the physician-patient relationship”; the physician’s “righ[t] to practice medicine”; the pregnant woman’s “right to life due to inherent risks involved in childbirth”; and the woman’s right to “receive … adequate medical advice and treatment” concerning abortions. …

Plaintiffs filed this suit

on their own behalf and on behalf of the entire class consisting of facilities and Missouri licensed physicians or other health care professionals offering abortion services or pregnancy counseling and on behalf of the entire class of pregnant females seeking abortion services or pregnancy counseling within the State of Missouri.

… The two nonprofit corporations are Reproductive Health Services, which offers family planning and gynecological services to the public, including abortion services up to 22 weeks “gestational age,” and Planned Parenthood of Kansas City, which provides abortion services up to 14 weeks gestational age. … The individual plaintiffs are three physicians, one nurse, and a social worker. All are “public employees” at “public facilities” in Missouri, and they are paid for their services with “public funds.” … The individual plaintiffs, within the scope of their public employment, encourage and counsel pregnant women to have nontherapeutic abortions. Two of the physicians perform abortions. …

Several weeks after the complaint was filed, the District Court temporarily restrained enforcement of several provisions of the Act. Following a 3-day trial in December, 1986, the District Court declared seven provisions of the Act unconstitutional and enjoined their enforcement. … These provisions included the preamble …; the “informed consent” provision, which required physicians to inform the pregnant woman of certain facts before performing an abortion…; the requirement that post-16-week abortions be performed only in hospitals …; the mandated tests to determine viability …; and the prohibition on the use of public funds, employees, and facilities to perform or assist nontherapeutic abortions, and the restrictions on the use of public funds, employees, and facilities to encourage or counsel women to have such abortions. …

The Court of Appeals for the Eighth Circuit affirmed, with one exception not relevant to this appeal. … The Court of Appeals determined that Missouri’s declaration that life begins at conception was “simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations.” … Relying on Colautti v. Franklin, 439 U.S. 379, 388–389 (1979), it further held that the requirement that physicians perform viability tests was an unconstitutional legislative intrusion on a matter of medical skill and judgment. … The Court of Appeals invalidated Missouri’s prohibition on the use of public facilities and employees to perform or assist abortions not necessary to save the mother’s life. … It distinguished our decisions in Harris v. McRae, 448 U.S. 297(1980), and Maher v. Roe, 432 U.S. 464 (1977), on the ground that

“[t]here is a fundamental difference between providing direct funding to effect the abortion decision and allowing staff physicians to perform abortions at an existing publicly owned hospital.”

… The Court of Appeals struck down the provision prohibiting the use of public funds for “encouraging or counseling” women to have nontherapeutic abortions, for the reason that this provision was both overly vague and inconsistent with the right to an abortion enunciated in Roe v. Wade. … The court also invalidated the hospitalization requirement for 16-week abortions … and the prohibition on the use of public employees and facilities for abortion counseling, … but the State has not appealed those parts of the judgment below. …

II

Decision of this case requires us to address four sections of the Missouri Act: (a) the preamble; (b) the prohibition on the use of public facilities or employees to perform abortions; (c) the prohibition on public funding of abortion counseling; and (d) the requirement that physicians conduct viability tests prior to performing abortions. We address these seriatim.

A

The Act’s preamble, as noted, sets forth “findings” by the Missouri legislature that “[t]he life of each human being begins at conception,” and that “unborn children have protectable interests in life, health, and wellbeing.” … 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. § 1.205.2. 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 determine[d] when life begins in a nonabortion context, a traditional state prerogative.” … The court thought that “[t]he only plausible inference” from the fact that “every remaining section of the bill save one regulates the performance of abortions” was that “the state intended its abortion regulations to be understood against the backdrop of its theory of life.” …

The State contends that the preamble itself is precatory, and imposes no substantive restrictions on abortions, and that appellees therefore do not have standing to challenge it. … Appellees, on the other hand, insist that the preamble is an operative part of the Act intended to guide the interpretation of other provisions of the Act. … They maintain, for example, that the preamble’s definition of life may prevent physicians in public hospitals from dispensing certain forms of contraceptives, such as the intrauterine device. …

In our view, the Court of Appeals misconceived the meaning of the Akron dictum, 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. Certainly the preamble does not, by its terms, regulate abortion or any other aspect of appellees’ medical practice. The Court has emphasized that Roe v. Wade “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion.” … The preamble can be read simply to express that sort of value judgment.

We think the extent to which the preamble’s language might be used to interpret other state statutes or regulations is something that only the courts of Missouri can definitively decide. State law has offered protections to unborn children in tort and probate law, … and § 1.205.2 can be interpreted to do no more than that. What we have, then, is much the same situation that the Court confronted in Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945). As in that case:

We are thus invited to pass upon the constitutional validity of a state statute which has not yet been applied or threatened to be applied by the state courts to petitioners or others in the manner anticipated. Lacking any authoritative construction of the statute by the state courts, without which no constitutional question arises, and lacking the authority to give such a controlling construction ourselves, and with a record which presents no concrete set of facts to which the statute is to be applied, the case is plainly not one to be disposed of by the declaratory judgment procedure.

… 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 a to the thing in issue in the case before it.

… We therefore need not pass on the constitutionality of the Act’s preamble.

B

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.

As we said earlier this Term in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196 (1989):

[O]ur cases have recognized that 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 itself may not deprive the individual.

In Maher v. Roe, supra, the Court upheld a Connecticut welfare regulation under which Medicaid recipients received payments for medical services related to childbirth, but not for nontherapeutic abortions. The Court rejected the claim that this unequal subsidization of childbirth and abortion was impermissible under Roe v. Wade. As the Court put it:

The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortion decisions. The Connecticut regulation places no obstacles—absolute or otherwise—in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult—and in some cases, perhaps, impossible—for some women to have abortions is neither created nor in any way affected by the Connecticut regulation.

… Relying on Maher, the Court in Poelker v. Doe, 432 U.S. 519, 521 (1977), held that the city of St. Louis committed

no constitutional violation … in electing, as a policy choice, to provide publicly financed hospital services for childbirth without providing corresponding services for nontherapeutic abortions.

More recently, in Harris v. McRae, 448 U.S. 297 (1980), the Court upheld “the most restrictive version of the Hyde Amendment,” … which withheld from States federal funds under the Medicaid program to reimburse the costs of abortions, “‘except where the life of the mother would be endangered if the fetus were carried to term.’” … As in Maher and Poelker, the Court required only a showing that Congress’ authorization of “reimbursement for medically necessary services generally, but not for certain medically necessary abortions” was rationally related to the legitimate governmental goal of encouraging childbirth. …

The Court of Appeals distinguished these cases on the ground that

[t]o prevent access to a public facility does more than demonstrate a political choice in favor of childbirth; it clearly narrows, and in some cases forecloses, the availability of abortion to women.

… The 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 “[s]uch 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 Maher, Poelker, and McRae. 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.” … Just as Congress’ refusal to fund abortions in McRae left

an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all,

… 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. If the State may “make a value judgment favoring childbirth over abortion and … implement that judgment by the allocation of public funds,” … surely it may do so through the allocation of other public resources, such as hospitals and medical staff.

The Court of Appeals sought to distinguish our cases on the additional ground that “[t]he evidence here showed that all of the public facility’s costs in providing abortion services are recouped when the patient pays.” … Absent any expenditure of public funds, the court thought that Missouri was “expressing” more than “its preference for childbirth over abortions,” but rather was creating an “obstacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest.” … We disagree.

“Constitutional concerns are greatest,” we said in Maher, …

when the State attempts to impose its will by the force of law; the State’s power to encourage actions deemed to be in the public interest is necessarily far broader.

Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of 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.

Maher, Poelker, and McRae 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. In Poelker, the suit was filed by an indigent who could not afford to pay for an abortion, but the ban on the performance of nontherapeutic abortions in city-owned hospitals applied whether or not the pregnant woman could pay. … The Court emphasized that the mayor’s decision to prohibit abortions in city hospitals was “subject to public debate and approval or disapproval at the polls,” and that

the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth, as St. Louis has done.

… Thus we uphold the Act’s restrictions on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions.

C

The Missouri Act contains three provisions relating to “encouraging or counseling a woman to have an abortion not necessary to save her life.” Section 188.205 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 did not consider § 188.205 separately from §§ 188.210 and 188.215. It 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 fourteenth 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, § 188.205. … A threshold question is whether this provision reaches primary conduct, or whether it is simply an instruction to the State’s fiscal officers not to allocate funds for abortion counseling. We accept, for purposes of decision, the State’s claim that § 188.205 “is not directed at the conduct of any physician or health care provider, private or public,” but “is directed solely at those persons responsible for expending public funds.” …

Appellees contend that they are not “adversely” affected under the State’s interpretation of § 188.205, and therefore that there is no longer a case or controversy before us on this question. … Plaintiffs are masters of their complaints, and remain so at the appellate stage of a litigation. … A majority of the Court agrees with appellees that the controversy over § 188.205 is now moot, because appellees’ argument amounts to a decision to no longer seek a declaratory judgment that § 188.205 is unconstitutional and accompanying declarative relief. … 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. …

Because this [dispute] was rendered moot in part by [appellees’] willingness permanently to withdraw their equitable claims from their federal action, a dismissal with prejudice is indicated.

…

D

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 twenty 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 State emphasizes the language of the first sentence, which speaks in terms of the physician’s determination of viability being made by the standards of ordinary skill in the medical profession. … Appellees stress the language of the second sentence, which prescribes such “tests as are necessary” to make a finding of gestational age, fetal weight, and lung maturity. …

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. … It also stated that

amniocentesis, the only method available to determine lung maturity, is contrary to accepted medical practice until 28–30 weeks of gestation, expensive, and imposes significant health risks for both the pregnant woman and the fetus.

…

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. …

“In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”

…The Court of Appeals’ interpretation also runs “afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties.” …

We think the viability testing provision makes sense only if the second sentence is read to require only those tests that are useful to making subsidiary findings as to viability. If we construe this provision to require a physician to perform those tests needed to make the three specified findings in all circumstances, including when the physician’s reasonable professional judgment indicates that the tests would be irrelevant to determining viability or even dangerous to the mother and the fetus, the second sentence of § 188.029 would conflict with the first sentence’s requirement that a physician apply his reasonable professional skill and judgment. It would also be incongruous to read this provision, especially the word “necessary,” to require the performance of tests irrelevant to the expressed statutory purpose of determining viability. It thus seems clear to us that the Court of Appeals’ construction of § 188.029 violates well-accepted canons of statutory interpretation used in the Missouri courts. …

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. Section 188.029 creates what is essentially a presumption of viability at 20 weeks, which the physician must rebut with tests indicating that the fetus is not viable prior to performing an abortion. It also directs the physician’s determination as to viability by specifying consideration, if feasible, of gestational age, fetal weight, and lung capacity. The District Court found that “the medical evidence is uncontradicted that a 20-week fetus is not viable,” and that “23½ to 24 weeks gestation is the earliest point in pregnancy where a reasonable possibility of viability exists.” … But it also found that there may be a 4-week error in estimating gestational age, … which supports testing at 20 weeks.

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.” … After viability, when the State’s interest in potential human life was held to become compelling, the State

may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

…

In Colautti v. Franklin, … upon which appellees rely, the Court held that a Pennsylvania statute regulating the standard of care to be used by a physician performing an abortion of a possibly viable fetus was void for vagueness. … But in the course of reaching that conclusion, the Court reaffirmed its earlier statement in Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976), that

“the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.”

… JUSTICE BLACKMUN, … ignores the statement in Colautti that

neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus.

… To the extent that § 188.029 regulates the method for determining viability, it undoubtedly does superimpose state regulation on the medical determination whether a particular fetus is viable. The Court of Appeals and the District Court thought it unconstitutional for this reason. … To the extent that the viability tests increase the cost of what are in fact second-trimester abortions, their validity may also be questioned under Akron, 462 U.S. at 434–435, where the Court held that a requirement that second-trimester abortions must be performed in hospitals was invalid because it substantially increased the expense of those procedures.

We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specifying elements of informed consent to be provided abortion patients, for example, were invalidated if they were thought to “structur[e] … the dialogue between the woman and her physician.” … As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judicial review … or for any other surgical procedure except abortion. …

Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. … We have not refrained from reconsideration of a prior construction of the Constitution that has proved “unsound in principle and unworkable in practice.” … We think the Roe trimester framework falls into that category.

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. 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. AS JUSTICE WHITE has put it, the trimester framework has left this Court to serve as the country’s “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.” …

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 dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the “fundamental right” recognized in Roe the State’s “compelling interest” in protecting potential human life throughout pregnancy. “[T]he State’s interest, if compelling after viability, is equally compelling before viability.” …

The tests that § 188.029 requires the physician to perform are designed to determine viability. The State here has chosen viability as the point at which its interest in potential human life must be safeguarded. … It is true that the tests in question increase the expense of abortion, and regulate the discretion of the physician in determining the viability of the fetus. Since the 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. But we are satisfied that the requirement of these tests permissibly furthers the State’s interest in protecting potential human life, and we therefore believe § 188.029 to be constitutional.

JUSTICE BLACKMUN takes us to task for our failure to 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 (1965), and Roe. But Griswold v. Connecticut, unlike Roe, 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. As such, it was far different from the opinion, if not the holding, of Roe v. Wade, which sought to establish a constitutional framework for judging state regulation of abortion during the entire term of pregnancy. That framework sought to deal with areas of medical practice traditionally subject to state regulation, and it sought to balance once and for all by reference only to the calendar the claims of the State to protect the fetus as a form of human life against the claims of a woman to decide for herself whether or not to abort a fetus she was carrying. The experience of the Court in applying Roe v. Wade in later cases … suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a “fundamental right” to abortion, as the Court described it in Akron, 462 U.S. at 420, n. 1, a “limited fundamental constitutional right,” which JUSTICE BLACKMUN today treats Roe as having established … or a liberty interest protected by the Due Process Clause, which we believe it to be. The Missouri testing requirement here is reasonably designed to ensure that abortions are not performed where the fetus is viable—an end which all concede is legitimate—and that is sufficient to sustain its constitutionality.

JUSTICE BLACKMUN also accuses us, inter alia, of cowardice and illegitimacy in dealing with “the most politically divisive domestic legal issue of our time.” … There is no doubt that our holding today will allow some governmental regulation of abortion that would have been prohibited under the language of cases such as Colautti v. Franklin, 439 U.S. 379 (1979), and Akron v. Akron Center for Reproductive Health, Inc., supra. But the goal of constitutional adjudication is surely not to remove inexorably “politically divisive” issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them. The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. We think we have done that today. JUSTICE BLACKMUN’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.

III

Both appellants and the United States as Amicus Curiae 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.

Sandra Day O’Connor: Concurrence

The time when viability is achieved 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.

The 20-week presumption of viability in the first sentence of § 188.029, it could be argued (though, I would think, unsuccessfully), restricts “the judgment of the responsible attending physician,” by imposing on that physician the burden of overcoming the presumption. This presumption may be a “superimpos[ition] [of] state regulation on the medical determination whether a particular fetus is viable,” but, if so, it is a restriction on the physician’s judgment that is not before us. As the plurality properly interprets the second sentence of § 188.029, it does nothing more than delineate means by which the unchallenged 20-week presumption of viability may be overcome if those means are useful in doing so and can be prudently employed. Contrary to the plurality’s suggestion, the District Court did not think the second sentence of § 188.029 unconstitutional for this reason. Rather, both the District Court and the Court of Appeals thought the second sentence to be unconstitutional precisely because they interpreted that sentence to impose state regulation on the determination of viability that it does not impose. …

I do not think the second sentence of § 188.029, as interpreted by the Court, imposes a degree of state regulation on the medical determination of viability that in any way conflicts with prior decisions of this Court. As the plurality recognizes, the requirement that, where not imprudent, physicians perform examinations and tests useful to making subsidiary findings to determine viability “promot[es] the State’s interest in potential human life, rather than in maternal health.” No decision of this Court has held that the State may not directly promote its interest in potential life when viability is possible. Quite the contrary. In Thornburgh v. American College of Obstetricians and Gynecologists, the Court considered a constitutional challenge to a Pennsylvania statute requiring that a second physician be present during an abortion performed “when viability is possible.” For guidance, the Court looked to the earlier decision in Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, upholding a Missouri statute requiring the presence of a second physician during an abortion performed after viability. The Thornburgh majority struck down the Pennsylvania statute merely because the statute had no exception for emergency situations, and not because it found a constitutional difference between the State’s promotion of its interest in potential life when viability is possible and when viability is certain. Despite the clear recognition by the Thornburgh majority that the Pennsylvania and Missouri statutes differed in this respect, there is no hint in the opinion of the Thornburgh Court that the State’s interest in potential life differs depending on whether it seeks to further that interest postviability or when viability is possible. Thus, all nine Members of the Thornburgh Court appear to have agreed that it is not constitutionally impermissible for the State to enact regulations designed to protect the State’s interest in potential life when viability is possible. That is exactly what Missouri has done in § 188.029.

Similarly, the basis for reliance by the District Court and the Court of Appeals below on Colautti v. Franklin disappears when § 188.029 is properly interpreted. In Colautti, the Court observed:

Because this point [of viability] may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus. Viability is the critical point.

The courts below, on the interpretation of § 188.029 rejected here, found the second sentence of that provision at odds with this passage from Colautti. On this Court’s interpretation of § 188.029, it is clear that Missouri has not substituted any of the “elements entering into the ascertainment of viability” as “the determinant of when the State has a compelling interest in the life or health of the fetus.” All the second sentence of § 188.029 does is to require, when not imprudent, the performance of “those tests that are useful to making subsidiary findings as to viability.” Thus, consistent with Colautti, viability remains the “critical point” under § 188.029.

Finally, and rather half-heartedly, the plurality suggests that the marginal increase in the cost of an abortion created by Missouri’s viability testing provision may make § 188.029, even as interpreted, suspect under this Court’s decision in Akron v. Akron Center for Reproductive Health, Inc., striking down a second-trimester hospitalization requirement. I dissented from the Court’s opinion in Akron because it was my view that, even apart from Roe’s trimester framework, which I continue to consider problematic, the Akron majority had distorted and misapplied its own standard for evaluating state regulation of abortion which the Court had applied with fair consistency in the past: that, previability, “a regulation imposed on a lawful abortion is not unconstitutional unless it unduly burdens the right to seek an abortion.”

It is clear to me that requiring the performance of examinations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be medically imprudent to do so, does not impose an undue burden on a woman’s abortion decision. On this ground alone, I would reject the suggestion that § 188.029 as interpreted is unconstitutional. More to the point, however, just as I see no conflict between § 188.029 and Colautti or any decision of this Court concerning a State’s ability to give effect to its interest in potential life, I see no conflict between § 188.029 and the Court’s opinion in Akron. The second-trimester hospitalization requirement struck down in Akron imposed, in the majority’s view, “a heavy, and unnecessary, burden,” more than doubling the cost of “women’s access to a relatively inexpensive, otherwise accessible, and safe abortion procedure.” By contrast, the cost of examinations and tests that could usefully and prudently be performed when a woman is 20–24 weeks pregnant to determine whether the fetus is viable would only marginally, if at all, increase the cost of an abortion. …

Moreover, the examinations and tests required by § 188.029 are to be performed when viability is possible. This feature of § 188.029 distinguishes it from the second-trimester hospitalization requirement struck down by the Akron majority. As the Court recognized in Thornburgh, the State’s compelling interest in potential life postviability renders its interest in determining the critical point of viability equally compelling. Under the Court’s precedents, the same cannot be said for the Akron second-trimester hospitalization requirement. As I understand the Court’s opinion in Akron, therefore, the plurality’s suggestion today that Akron casts doubt on the validity of § 188.029, even as the Court has interpreted it, is without foundation, and cannot provide a basis for reevaluating Roe. Accordingly, because the Court of Appeals misinterpreted § 188.029, and because, properly interpreted, § 188.029 is not inconsistent with any of this Court’s prior precedents, I would reverse the decision of the Court of Appeals.

In sum, I concur in Parts I, II-A, II-B, and II-C of the Court’s opinion and concur in the judgment as to Part II-D.