428 U.S. 52 (1976), 74-1151, Planned Parenthood of Central Missouri v. Danforth

Docket Nº:No. 74-1151
Citation:428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788
Party Name:Planned Parenthood of Central Missouri v. Danforth
Case Date:July 01, 1976
Court:United States Supreme Court

Page 52

428 U.S. 52 (1976)

96 S.Ct. 2831, 49 L.Ed.2d 788

Planned Parenthood of Central Missouri



No. 74-1151

United States Supreme Court

July 1, 1976

Argued March 23, 1976




Two Missouri-licensed physicians, one of whom performs abortions at hospitals and the other of whom supervises abortions at Planned Parenthood, a not-for-profit corporation, brought suit, along with that organization, for injunctive and declaratory relief challenging the constitutionality of the Missouri abortion statute. The provisions under attack are: § 2(2), defining "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;

§ 3(2), requiring that, before submitting to an abortion during the first 12 weeks of pregnancy, a woman must consent in writing to the procedure and certify that "her consent is informed and freely given, and is not the result of coercion"; § 3(3), requiring, for the same period, the written consent of the spouse of a woman seeking an abortion unless a licensed physician certifies that the abortion is necessary to preserve the mother's life; § 3(4), requiring, for the same period, and with the same proviso, the written consent of a parent or person in loco parentis to the abortion of an unmarried woman under age 18; § 6(1), requiring the physician to exercise professional care to preserve the fetus' life and health, failing which he is deemed guilty of manslaughter and is liable in an action for damages; § 7, declaring an infant who survives an attempted abortion not performed to save the mother's life or health an abandoned ward of the State, and depriving the mother and a consenting father of parental rights; § 9, prohibiting, after the first 12 weeks of pregnancy, the abortion procedure of saline amniocentesis as "deleterious to maternal health"; and §§ 10 and 11, prescribing reporting and recordkeeping

Page 53

requirements for health facilities and physicians performing abortions. The District Court ruled that the two physicians had "obvious standing" to maintain the suit, and that it was therefore unnecessary to determine if Planned Parenthood also had standing. On the merits, the court upheld the foregoing provisions with the exception of § 6(1)'s professional skill requirement, which was held to be "unconstitutionally overbroad" because it failed to exclude the pregnancy stage prior to viability.


1. The physician appellants have standing to challenge the foregoing provisions of the Act with the exception of § 7, the constitutionality of which the Court declines to decide. Doe v. Bolton, 410 U.S. 179. P. 62, and n. 2.

2. The definition of viability in § 2(2) does not conflict with the definition in Roe v. Wade, 410 U.S. 113, 160, 163, as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," and is presumably capable of "meaningful life outside the mother's womb." Section 2(2) maintains the flexibility of the term "viability" recognized in Roe. It is not a proper legislative or judicial [96 S.Ct. 2834] function to fix viability, which is essentially for the judgment of the responsible attending physician, at a specific point in the gestation period. Pp. 63-65.

3. The consent provision in § 3(2) is not unconstitutional. The decision to abort is important and often stressful, and the awareness of the decision and its significance may be constitutionally assured by the State to the extent of requiring the woman's prior written consent. Pp. 65-67.

4. The spousal consent provision in § 3(3), which does not comport with the standards enunciated in Roe v. Wade, supra, at 164-165, is unconstitutional, since the State cannot

"delegate to a spouse a veto power which the [S]tate itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy."

Pp. 67-72.

5. The State may not constitutionally impose a blanket parental consent requirement, such as § 3(4), as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or other vise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, "the abortion decision and its effectuation must

Page 54

be left to the medical judgment of the pregnant woman's attending physician." 410 U.S. at 164. Pp. 72-75.

6. Through § 9, the State would prohibit the most commonly used abortion procedure in the country and one that is safer, with respect to maternal mortality, than even the continuation of pregnancy until normal childbirth, and would force pregnancy terminations by methods more dangerous to the woman's health than the method outlawed. As so viewed (particularly since another safe technique, prostaglandin, is not yet available) the outright legislative proscription of saline amniocentesis fails as a reasonable protection of maternal health. As an arbitrary regulation designed to prevent the vast majority of abortions after the first 12 weeks, it is plainly unconstitutional. Pp. 75-79.

7. The reporting and recordkeeping requirements, which can be useful to the State's interest in protecting the health of its female citizens and which may be of medical value, are not constitutionally offensive in themselves, particularly in view of reasonable confidentiality and retention provisions. They thus do not interfere with the abortion decision or the physician-patient relationship. It is assumed that the provisions will not be administered in an unduly burdensome way, and that patients will not be required to execute spousal or parental consent forms in accordance with invalid provisions of the Act. Pp. 79-81.

8. The first sentence of § 6(1) impermissibly requires a physician to preserve the fetus' life and health, whatever the stage of pregnancy. The second sentence, which provides for criminal and civil liability where a physician fails "to take such measures to encourage or to sustain the life of the child, and the death of the child results," does not alter the duty imposed by the first sentence or limit that duty to pregnancies that have reached the stage of viability, and since it is inseparably tied to the first provision, the whole section is invalid. Pp. 81-84.

392 F.Supp. 1362, affirmed in part, reversed in part, and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined, in all but Parts IV-D and IV-E of which STEVENS, J., joined, and in all but Parts IV-C, IV-D, IV-E, and IV-G of which BURGER, C.J., and WHITE and REHNQUIST, JJ., joined. STEWART, J., filed a concurring opinion, in which POWELL, J., joined, post, p. 89. WHITE, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 92. STEVENS, J.,

Page 55

filed an opinion concurring in part and dissenting in part, post, p. 101.

BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This case is a logical and anticipated corollary to Roe v. Wade, 410 U.S. 113 (1973), [96 S.Ct. 2835] and Doe v. Bolton, 410 U.S. 179 (1973), for it raises issues secondary to those that were then before the Court. Indeed, some of the questions now presented were forecast and reserved in Roe and Doe. 410 U.S. at 165 n. 67.


After the decisions in Roe and Doe, this Court remanded for reconsideration a pending Missouri federal case in which the State's then-existing abortion legislation,

Page 56

Mo.Rev.Stat. §§ 559.100, 542.380, and 563.300 (1969), was under constitutional challenge. Rodgers v. Danforth, 410 U.S. 949 (1973). A three-judge federal court for the Western District of Missouri, in an unreported decision, thereafter declared the challenged Missouri statutes unconstitutional and granted injunctive relief. On appeal here, that judgment was summarily affirmed. Danforth v. Rodgers, 414 U.S. 1035 (1973).

In June, 1974, somewhat more than a year after Roe and Doe had been decided, Missouri's 77th General Assembly, in its Second Regular Session, enacted House Committee Substitute for House Bill No. 1211 (hereinafter Act). The legislation was approved by the Governor on June 14, 1974, and became effective immediately by reason of an emergency clause contained in § A of the statute. The Act is set forth in full as the Appendix to this opinion. It imposes a structure for the control and regulation of abortions in Missouri during all stages of pregnancy.


Three days after the Act became effective, the present litigation was instituted in the United States District Court for the Eastern District of Missouri. The plaintiffs are Planned Parenthood of Central Missouri, a not-for-profit Missouri corporation which maintains a facility in Columbia, Mo., for the performance of abortions; David Hall, M.D.; and Michael Freiman, M.D. Doctor Hall is a resident of Columbia, is licensed as a physician in Missouri, is chairman of the Department and Professor of Obstetrics and Gynecology at the University of Missouri Medical School at Columbia, and supervises abortions at the Planned Parenthood facility. He was described by the three-judge court in the 1973 case as one of four plaintiffs who were "eminent, Missouri-licensed obstetricians and gynecologists." Jurisdictional

Page 57

Statement, App. 7, in Danforth v. Rodgers, No. 73-426, O.T. 1973. Doctor Freiman is a resident of St. Louis, is licensed as a physician in Missouri, is an instructor of Clinical Obstetrics and Gynecology at Washington University Medical School,...

To continue reading