Planned Parenthood of Central Missouri v. Danforth

In a concurring opinion, Justice Stewart made mention of certain specific issues addressed in the Court's rulings on viability, parental consent, and the consent of the husband. The last of these, he said, "seems to me a rather more difficult problem than the Court acknowledges." He cited earlier decisions such as Stanley v. Illinois (1972), in which the Court had established that 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. Citing Stanley, he wrote that "A father's interest in having a child--perhaps his only child--may be unmatched by any other interest in his life." As for the 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 not in 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 method was 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 White wrote that

If this section is read in any way other than through a 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 time when 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 same reason. Furthermore, "It is unrealistic, in my judgment, to assume that every parent-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 the child'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.