Planned Parenthood of Central Missouri v. Danforth - Further Readings

Appellant
Planned Parenthood of Central Missouri; David Hall, M.D.; Michael Freiman, M.D.
Appellee
John C. Danforth, Attorney General of Missouri
Appellant's Claim
That under the guidelines established by the Court in Roe v. Wade andDoe v. Bolton, and under the Eighth and Fourteenth Amendments to the Constitution, a Missouri abortion statute is unconstitutional.
Chief Lawyer for Appellee
John C. Danforth
Chief Lawyer for Appellant
Frank Susman
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., ThurgoodMarshall, Lewis F. Powell, Jr., Potter Stewart
Justices Dissenting
Warren E. Burger, William H. Rehnquist, John Paul Stevens, Byron R. White
Place
Washington, D.C.
Date of Decision
1 July 1976
Decision
In a complex eight-part ruling, the Court struck down Missouri's requirementsthat a married woman should receive the consent of her husband, and a minorof her parents, before receiving an abortion. It also invalidated laws proscribing the abortion procedure of saline amniocentesis and requiring physiciansto preserve the fetus's life whatever the stage of pregnancy. The Court upheld state provisions regarding viability of a fetus, written consent by the pregnant woman, and the keeping of abortion records; and refused to rule on aneighth provision, for which it held that the appellants lacked standing to challenge.
Significance
In the wake of the Court's monumental ruling in Roe v. Wade and Doev. Bolton, which established the legality of abortion, many states had adopted strict statutes designed to place limits on that practice. Danforth marked the first significant challenge to these post- Roe laws. It expanded the rights established in the earlier cases through its ruling that requirements of spousal and parental consent for abortion are constitutional.
A Question of Viability
Planned Parenthood of Central Missouri v. Danforth was, as the Court announced in its opening comments on the case, a "logical and anticipated corollary to" Roe v. Wade (1973) and Doe v. Bolton (1973), two cases that had legalized abortion. Not long after those decisions, the Court reviewed a case in which a 1969 Missouri abortion law had come under constitutional challenge. A panel of three federal judges in the Western District of Missouri, in an unreported decision, declared the Missouri statutes unconstitutional. The Supreme Court affirmed this decision. Meanwhile, a number of states,Missouri among them, sought to enact tougher abortion laws in order to curtail the number of situations in which abortion might be permissible. In June of 1974, the Missouri General Assembly passed House Bill 1211 (which the Courtdesignated as "act"), and the state governor signed it into law on 14 June 1974.
The act set a number of stipulations regarding abortion, and three days afterits passage, it was challenged in the U.S. Court for the Eastern District ofMissouri. Leading the list of plaintiffs was Planned Parenthood of Central Missouri, a non-profit corporation that maintained an abortion clinic in Columbia, Missouri. David Hall and Michael Freiman, both physicians who regularlyperformed abortions, joined Planned Parenthood in that action, which they brought "on behalf of the entire class consisting of duly licensed physicians and surgeons" involved, or interested in being involved, in performing abortions; and "on behalf of the entire class consisting of their patients desiring the termination of pregnancy, all within the State of Missouri." According totheir suit, the Missouri statute deprived themselves and their patients of various constitutional rights, including "the right to privacy in the physician-patient relationship"; the physician's "right to practice medicine accordingto the highest standards of medical practice"; a woman's right to decide whether or not she should have children; her "right to life due to the inherentrisk involved in childbirth"; physicians' right to give medical advice, and patients' right to receive it; the patients' right to be free from cruel and unusual punishment under the Eighth Amendment, in this case such punishment being "coercing them to bear each pregnancy they conceive"; and the physician'sright to due process of law under the Fourteenth Amendment.
In all, the case challenged some nine provisions in the Missouri statute, some of which the district court held as unconstitutional. With regard to thoseparts deemed constitutional, the people bringing suit appealed; likewise thestate of Missouri, in a subordinate legal action designated as Danforth v.Planned Parenthood of Central Missouri, appealed the lower court's rulings against certain of its state laws. On the side of the appellants, the Center for Constitutional Rights and the Planned Parenthood Federation of AmericaInc. filed briefs of amici curiae. Likewise the United States Catholic Conference, Lawyers for Life Inc., and Missouri Nurses for Life filed briefs on behalf of the appellees.
The Court's ruling in Danforth was a complex one, divided into eight parts. A majority agreed on all eight, but four--White, Burger, Rehnquist, andStevens-- dissented on a number of the parts. Beginning its ruling, the Court noted that under Roe, it had established the existence of a "right of privacy, whether it be founded in the Fourth Amendment's concept of personal liberty . . . or . . . in the Ninth Amendment's reservation of rights to the people." It had "emphatically rejected," however, the notion that "the woman's right is absolute and that she is entitled to terminate her pregnancy atwhatever time, in whatever way, and for whatever reason she alone chooses." Rather, state interests must be taken into consideration as well. The Court tied the permissibility of state regulations to three stages of pregnancy: (1)a period approximating the first trimester or three months, when the state could not interfere at all in the decision to abort; (2) a period in which thestate could "reasonably regulate the abortion procedure to preserve and protect maternal health"; and (3) a stage when the fetus is determined to be viable, "a point purposefully left flexible for professional determination," at which time the state could "regulate an abortion to protect the life of the fetus and even . . . proscribe abortion except where it is necessary . . . for the life or health of the mother."
The Court then turned to the various challenged statutes. The first of thesewas section 7, which declared that if an infant survived an abortion not performed for reasons of health or to save life, that child would be taken from its parents and declared a ward of the state. Given the fact that this particular statute had nothing to do with the physicians or Planned Parenthood, theCourt ruled that the appellants lacked standing, and declined to make any judgment whatever on the statute itself.
Next it turned to the challenging question of viability, which Missouri defined in section 2 (2) as "that stage of fetal development when the life of theunborn child may be continued indefinitely outside the womb by natural or artificial life- supportive systems." In Roe, the Court had loosely defined "viable" as the point at which the fetus was "potentially able to live outside the mother's womb, albeit with artificial aid," and had noted that thisusually falls around the seventh month or the twenty-eighth week of pregnancy. "In any event," wrote Justice Blackmun for the Court, "we agree with the District Court that it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specificpoint in the gestation period." Therefore the Court concluded that section 2(2) did not overstep the limits on state regulation established in Roe.
Three Issues of Consent
The Court next approached three provisions in the statutes requiring one formof consent or another before an abortion could be performed: section 3 (2),by which a woman had to provide written consent that she had agreed to the abortion before she underwent it; section 3 (3), which required that a marriedwoman's husband give his consent to the abortion in situations where the operation was not necessary to preserve the woman's life; and section 3 (4), which required the consent of parents before a minor could have an abortion.
The Court found section 3 (2), the requirement of written consent, constitutional. The appellants had charged that the statute violated Roe by adding an "extra layer and burden of regulation on the abortion decision"; the district court, however, had ruled that the decision to end a pregnancy is "often a stressful one," and that 3 (2) "insures that the pregnant woman retainscontrol over the discretions of her consulting physician." The Court agreed,despite the fact that with rare exceptions, Missouri required no written consent for other types of medical procedures. Abortion, clearly, was a special type of operation; and in any case, "We could not say that a requirement imposed by the State that a prior written consent for any surgery would be unconstitutional."
As for section 3 (3), requiring spousal consent, the Court found this statuteunconstitutional. The appellees had argued that marriage was an institutionto be respected under Missouri law; therefore, "a change in the family structure set in motion by mutual consent should be terminated only by mutual consent." In the view of the appellants, section 3 (3) made it possible for a husband to demand that his wife not abort, whether or not she felt that was the best decision. The Court held to the logic that "Inasmuch as it is the woman who physically bears the child . . . the balance weighs in her favor" when itcomes to final decision-making power. Therefore, it declared section 3 (3) unconstitutional.
The Court similarly found section 3 (4), the requirement of parental consentfor minors, unconstitutional. The appellees had pointed out that, due to thedesire of the state to protect their best interests, minors already enjoyed fewer rights than adults, and were thus prohibited from purchasing alcohol, firearms, tobacco, and pornography. The appellants, on the other hand, argued that Missouri made no other requirements for adult consent, even in the situation of a minor giving birth to a child. The district court had taken the sideof the appellees, finding "a compelling basis" for the state's interest "insafeguarding the authority of the family relationship." The Supreme Court, however, ruled that "constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority." Furthermore, it was not likely that the parental consent law, by "providing the parent with absolute power" would necessarily "serve to strengthen the family unit."That being said, the Court made clear that it "does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy."
Three Other Provisions
Section 9 of the Missouri statute prohibited the use of saline amniocentesis,the injection of "a saline or other fluid" into the amniotic sac in place ofamniotic fluid. The Court likewise rejected this provision because it proscribed "the most commonly used abortion procedure in the country and one that is safer, with respect to infant mortality, than even the continuation of pregnancy until normal childbirth." According to the appellants, 70 percent of all abortions after the first trimester were performed according to this procedure, and thus it amounted to a de facto prohibition of second-trimester abortions. They also presented evidence that the mortality rate was actually higher in childbirth than in cases where women had received saline amniocentesis; nonetheless, the district court had ruled that the restriction it imposed protected the health of the mother. The Supreme Court did not agree, "particularly in light of the present unavailability" in Missouri of the prostaglandin method, a technique deemed even safer than saline amniocentesis.
Section 10 of the act put in place record keeping requirements whereby clinics would report details of "all abortions performed to assure that they are done only under and in accordance with the provisions of the law." Section 11 required that these records be kept on file for seven years. The appellants challenged these as yet another burden and extra layer of regulation, but the district court had treated them as essential statistical requirements. In spite of "important and sometimes conflicting interests affected by record keeping requirements," the Supreme Court held that these were "reasonably directedto the preservation of maternal health . . . " Therefore, it allowed the twolaws to stand.
Finally, the Court approached section 6 (1), which stated that

Noperson 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. Anyphysician or person assisting in the abortion who shall fail to take such measures . . . shall be deemed guilty of manslaughter [and] shall be liable inan action for damages.

The district court had judged this as unconstitutionally overbroad, and the Supreme Court agreed.
Concurrence and Dissent
In a concurring opinion, Justice Stewart made mention of certain specific issues addressed in the Court's rulings on viability, parental consent, and theconsent of the husband. The last of these, he said, "seems to me a rather more difficult problem than the Court acknowledges." He cited earlier decisionssuch as Stanley v. Illinois (1972), in which the Court had establishedthat a man's right to be a father was a constitutionally protected freedom.
Justice White, joined by Chief Justice Burger and Justice Rehnquist, concurred in part and dissented in part. With regard to spousal consent in section 3(3), he disagreed with the Court's finding that the state was simply delegating to the husband rights which should belong exclusively to the wife. CitingStanley, he wrote that "A father's interest in having a child--perhapshis only child--may be unmatched by any other interest in his life." As forthe requirement of parental consent in section 3 (4), White held that "The purpose of the requirement is 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.'" The state of Missouri was simply attempting to "protect the minor unmarried woman from making the decision in a way which is notin her own best interests."
Addressing the prohibition of saline amniocentesis in section 9, Justice White wrote that "Legislative history reveals that the Missouri Legislature viewed saline amniocentesis as a far less safe method of abortion than the so-called prostaglandin method." Furthermore, the fact that the prostaglandin methodwas not available in Missouri did not by any means indicate that it was unavailable to Missouri women, who could obtain it elsewhere.
As for section 6 (1) and its seemingly contradictory requirement that the physician attempt to preserve the life of the fetus being aborted, Justice Whitewrote that

If this section is read in any way other than througha microscope, it is plainly intended to require that, where a `fetus [may have] the capability of meaningful life outside the mother's womb,' . . . the abortion be handled in a way which is designed to preserve that life notwithstanding the mother's desire to terminate it.

Common sense would dictate, then, that

if the pregnancy is to be terminated at a timewhen there is no chance of life outside the womb, a physician would not be required to exercise any care or skill to preserve the life of the fetus during abortion no matter what the mother's desires.

Therefore, despite the fact that section 6 (1) was "ambiguous," Justice White held that it should not be declared unconstitutional.
Finally, Justice Stevens concurred in part and dissented in part. Like Justice White, he held that the parental consent requirement in section 3 (4) was not inconsistent with the Court's ruling in Roe, and for much the samereason. Furthermore, "It is unrealistic, in my judgment, to assume that everyparent-child relationship is either (a) so perfect that communication . . .will take place routinely"--i.e., that the law in section 3 (4) would be unnecessary--"or (b) so imperfect that the absence of communication reflects thechild's correct prediction that the parent will exercise his or her veto arbitrarily to further a selfish interest," which would mean that section 3 (4) would be harmful without exception.
Impact
Although several elements of Danforth had the potential for enormous impact on abortion law, by far the most significant were those parts dealing with consent in one form or another. Five years later, in H. L. v. Matheson (1981), the Court sustained a requirement for parental consent, and continued to uphold similar laws in other cases. In the area of written consent by the woman herself, the state of Ohio sought to expand on the authority conceded to Missouri in Danforth, and established requirements challengedin Akron v. Akron Center for Reproductive Health (1983). By a vote of6-3, the Court voted to strike down these more stringent requirements, whichit held were designed to dissuade the pregnant woman from having an abortion.In 1986, it also invalidated a less broad Pennsylvania law which required adoctor to counsel a pregnant woman on the risks inherent in an abortion, andto inform her of the options available if she chose to carry the child to term.
Related Cases

• Stanley v. Illinois, 405 U.S. 645 (1972).
  
• Roe v. Wade, 410 U.S. 113 (1973).
  
• Doe v. Bolton, 410 U.S. 179 (1973).
  
• Bellotti v. Baird, 428 U.S. 132 (1976).
  
• Beal v. Doe, 432 U.S. 454 (1977).
  
• Maher v. Roe, 432 U.S. 464 (1977).
  
• Harris v. McRae, 448 U.S. 297 (1980).
  
• Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).