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PLANNED PARENTHOOD ASSOCIATION KANSAS CITY v. ASHCROFT

decided*fn*: June 15, 1983.

PLANNED PARENTHOOD ASSOCIATION OF KANSAS CITY, MISSOURI, INC., ET AL
v.
ASHCROFT, ATTORNEY GENERAL OF MISSOURI, ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

Powell, J., announced the judgment of the Court in Part VI and delivered the opinion of the Court with respect to Parts I and II, in which Burger, C. J., and Brennan, Marshall, Blackmun, and Stevens, JJ., joined, and an opinion with respect to Parts III, IV, and V, in which Burger, C. J., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Brennan, Marshall, and Stevens, JJ., joined, post, p. 494. O'connor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which White and Rehnquist, JJ., joined, post, p. 505.

Author: Powell

[ 462 U.S. Page 478]

 JUSTICE POWELL announced the judgment of the Court in Part VI and delivered the opinion of the Court with respect to Parts I and II and an opinion with respect to Parts III, IV, and V, in which THE CHIEF JUSTICE joins.

These cases, like City of Akron v. Akron Center for Reproductive Health, Inc., ante, p. 416, and Simopoulos v. Virginia, post, p. 506, present questions as to the validity of state statutes or local ordinances regulating the performance of abortions.

I

Planned Parenthood Association of Kansas City, Missouri, Inc., two physicians who perform abortions, and an abortion clinic (plaintiffs) filed a complaint in the District Court for the Western District of Missouri challenging, as unconstitutional, several sections of the Missouri statutes regulating the performance of abortions. The sections relevant here include Mo. Rev. Stat. § 188.025 (Supp. 1982), requiring that abortions after 12 weeks of pregnancy be performed in a hospital;*fn1 § 188.047, requiring a pathology report for each abortion performed;*fn2 § 188.030.3, requiring the presence of a second

[ 462 U.S. Page 479]

     physician during abortions performed after viability;*fn3 and § 188.028, requiring minors to secure parental or judicial consent.*fn4

[ 462 U.S. Page 480]

     After hearing testimony from a number of expert witnesses, the District Court invalidated all of these sections except the pathology requirement. 483 F.Supp. 679, 699-701 (1980).*fn5 The Court of Appeals for the Eighth Circuit

[ 462 U.S. Page 481]

     reversed the District Court's judgment with respect to § 188.028, thereby upholding the requirement that a minor secure parental or judicial consent to an abortion. It also held that the District Court erred in sustaining § 188.047, the pathology requirement. The District Court's judgment with respect to the second-physician requirement was affirmed, and the case was remanded for further proceedings and findings relating to the second-trimester hospitalization requirement. 655 F.2d 848, 872-873 (1981). On remand, the District Court adhered to its holding that the second-trimester hospitalization requirement was unconstitutional. The Court of Appeals affirmed this judgment. 664 F.2d 687, 691 (1981). We granted certiorari. 456 U.S. 988 (1982).

The Court today in City of Akron, ante, at 426-431, has stated fully the principles that govern judicial review of state statutes regulating abortions, and these need not be repeated here. With these principles in mind, we turn to the statutes at issue.

II

[ 462 U.S. Page 482]

     In City of Akron, we invalidated a city ordinance requiring physicians to perform all second-trimester abortions at general or special hospitals accredited by the Joint Commission on Accreditation of Hospitals (JCAH) or by the American Osteopathic Association. Ante, at 431-432. Missouri's hospitalization requirements are similar to those enacted by Akron, as all second-trimester abortions must be performed in general, acute-care facilities.*fn6 For the reasons stated in City of Page 482} Akron, we held that such a requirement "unreasonably infringes upon a woman's constitutional right to obtain an abortion." Ante, at 439. For the same reasons, we affirm the Court of Appeals' judgment that § 188.025 is unconstitutional.

III

We turn now to the State's second-physician requirement. In Roe v. Wade, 410 U.S. 113 (1973), the Court recognized that the State has a compelling interest in the life of a viable fetus: "[The] State in promoting its interest in the potentiality of human life 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." Id., at 164-165. See Colautti v. Franklin, 439 U.S. 379, 386-387 (1979); Beal v. Doe, 432 U.S. 438, 445-446 (1977). Several of the Missouri statutes undertake such regulation. Postviability abortions are proscribed except when necessary to preserve the life or the health of the woman. Mo. Rev. Stat. § 188.030.1 (Supp. 1982). The

[ 462 U.S. Page 483]

     State also forbids the use of abortion procedures fatal to the viable fetus unless alternative procedures pose a greater risk to the health of the woman. § 188.030.2.

The statutory provision at issue in this case requires the attendance of a second physician at the abortion of a viable fetus. § 188.030.3. This section requires that the second physician "take all reasonable steps in keeping with good medical practice . . . to preserve the life and health of the viable unborn child; provided that it does not pose an increased risk to the life or health of the woman." See n. 3, supra. It also provides that the second physician "shall take control of and provide immediate medical care for a child born as a result of the abortion."

The lower courts invalidated § 188.030.3.*fn7 The plaintiffs, respondents here on this issue, urge affirmance on the

[ 462 U.S. Page 484]

     grounds that the second-physician requirement distorts the traditional doctor-patient relationship, and is both impractical and costly. They note that Missouri does not require two

[ 462 U.S. Page 485]

     physicians in attendance for any other medical or surgical procedure, including childbirth or delivery of a premature infant.

The first physician's primary concern will be the life and health of the woman. Many third-trimester abortions in Missouri will be emergency operations,*fn8 as the State permits these late abortions only when they are necessary to preserve the life or the health of the woman. It is not unreasonable for the State to assume that during the operation the first physician's attention and skills will be directed to preserving the woman's health, and not to protecting the actual life of those fetuses who survive the abortion procedure. Viable fetuses will be in immediate and grave danger because of their premature birth. A second physician, in situations where Missouri permits third-trimester abortions, may be of assistance to the woman's physician in preserving the health and life of the child.

By giving immediate medical attention to a fetus that is delivered alive, the second physician will assure that the State's interests are protected more fully than the first physician alone would be able to do. And given the compelling interest that the State has in preserving life, we cannot say that the Missouri requirement of a second physician in those unusual

[ 462 U.S. Page 486]

     circumstances where Missouri permits a third-trimester abortion is unconstitutional. Preserving the life of a viable fetus that is aborted may not often be possible,*fn9 but the State legitimately may choose to provide safeguards for the comparatively few instances of live birth that occur. We believe the second-physician requirement reasonably furthers the State's compelling interest in protecting the lives of viable fetuses, and we reverse the judgment of the Court of Appeals holding that § 188.030.3 is unconstitutional.

IV

In regulating hospital services within the State, Missouri requires that "[all] tissue surgically removed with the exception of such tissue as tonsils, adenoids, hernial sacs and prepuces, shall be examined by a pathologist, either on the premises or by arrangement outside of the hospital." 13 Mo. Admin. Code § 50-20.030(3)(A)7 (1977). With respect to abortions, whether performed in hospitals or in some other facility, § 188.047 requires the pathologist to "file a copy of the tissue report with the state division of health . . . ." See n. 2, supra. The pathologist also is required to "provide a copy of the report to the abortion facility or hospital in which the abortion was performed or induced." Thus, Missouri appears to require that tissue following abortions, as well as from almost all other surgery performed in hospitals, must be submitted to a pathologist, not merely examined by the performing doctor. The narrow question before us is whether the State lawfully also may require the tissue removed following

[ 462 U.S. Page 487]

     abortions performed in clinics as well as in hospitals to be ...


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