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Mazurek v. Armstrong (1997)

In Depth


In 1995, Montana enacted a statute restricting the performance of abortions to licensed physicians.  Similar statutes have been enacted in the overwhelming majority of States.

Plaintiffs, a group of licensed physicians and one physician-assistant practicing in Montana, brought a lawsuit in federal district court challenging the statute.  The Attorney General was named as the defendant.   The plaintiffs claimed that the statute imposed an "undue burden" on the ability of women to obtain abortions in Montana, in violation of the Supreme Court's holding in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).  The district court denied plaintiffs' motion for a preliminary injunction and plaintiffs appealed.  On appeal, the court of appeals vacated the district court's order denying plaintiffs' motion, holding that they had shown a "fair chance of success on the merits" of their claim, and thus had met the threshold requirement for preliminary injunctive relief under circuit court precedents.  Mazurek, 520 U.S. at 970 (quoting opinion of the court of appeals).  The court of appeals remanded the case to the district court with instructions to reconsider the "balance of hardships" and determine whether entry of a preliminary injunction was warranted.  Id. While the case was still pending in the district court, the Supreme Court, on a vote of six-to-three, granted the Attorney General's petition for review and reversed the judgment of the court of appeals.

The Statute Under Review

The statute challenged in Mazurek provided that "an abortion may not be performed within the State of Montana . . . except by a licensed physician."  Mont. Code Ann. § 50-20-109(1)(a).

The Court's Holding

By a six-to-three vote, the Court granted the Attorney General's petition for review, reversed the judgment of the court of appeals and remanded the case for further proceedings consistent with its opinion

The Court's Reasoning

In its per curiam opinion, the majority noted that the court of appeals' conclusion-that the plaintiffs had established a "fair chance of success on the merits" of their constitutional challenge-was inconsistent with the Court's treatment of the physician-only requirement at issue in Planned Parenthood of Southeastern Pennsylvania v. CaseyMazurek, 520 U.S. at 971.  "That requirement," the Court observed, "involved only the provision of information to patients, and not the actual performance of abortions, yet we nonetheless held . . . that the limitation to physicians was valid."  Id. (citing Casey, 505 U.S. at 884-85) (emphasis in original).  "Since there is no evidence on this record that requiring a doctor to give the information as provided by the statute would amount in practical terms to a substantial obstacle to a woman seeking an abortion, . . . it is not an undue burden."  Casey, 505 U.S. at 884-85 (emphasis added).  Based on this passage from Casey, the district court held that plaintiffs had failed to demonstrate that the physician-only requirement placed an undue burden on a woman seeking an abortion.  906 F.Supp. 561, 567 (D. Mont. 1995).   The court of appeals did not contest this conclusion.  Instead, "it held that the physician-only requirement was arguably invalid because its purpose, according to the Court of Appeals, may have been to create a substantial obstacle to women seeking abortions."  Mazurek, 520 U.S. at 972 (summarizing holding) (emphasis in original).  The Court rejected this holding.  "[E]ven assuming the correctness of the Court of Appeals' implicit premise-that a legislative purpose to interfere with the constitutionally protected right to abortion without the effect of interfering with that right . . . could render the Montana law invalid-there is no basis for finding a vitiating purpose here."  Id. (emphasis in original).  "We do not assume unconstitutional legislative intent even when statutes produce harmful results, . . . much less do we assume it when the results are harmless."  Id. (citation omitted).

In defense of the court of appeals' holding, the plaintiffs argued that the Montana legislature must have had an invalid purpose because there was no basis for concluding that first-trimester abortions performed by physician assistants posed any more of a health risk to pregnant women than first-trimester abortions performed by physicians.  Mazurek, 520 U.S. at 973.  The Court rejected this argument which it determined was foreclosed by CaseyId.  In upholding the physician-only requirement in that case, the Court emphasized that "[o]ur cases reflect the fact that the Constitution gives the States broad latitude to decide that particular function may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others."  505 U.S. at 885 (emphasis added).  The Court dismissed plaintiffs' reliance on the fact that "an antiabortion group drafted the Montana law" because that "says nothing significant about the legislature's purpose in passing it."  Mazurek, 520 U.S. at 973.

The notion that the legislature, by enacting the physician-only requirement, intended to make it more difficult to obtain abortions in Montana was contradicted by the fact that there was only one physician assistant who performed abortions in Montana, and she could do so only under the direct supervision of a licensed physician.  Mazurek, 520 U.S. at 973-74.  This meant that "no woman seeking an abortion would be required by the new law to travel to a different facility than was previously available."  Id. at 974.  In sum, there was no evidence that the physician-only requirement created a "substantial obstacle" to abortion, and none whatsoever that "the legislature intended the law to do what is plainly did not do." Id.

The majority opinion added that the court of appeals' decision was also contradicted by the Court's repeated statements in earlier cases-none of which was cited by the court of appeals-that the States may restrict the performance of abortions to licensed physicians. Mazurek, 520 U.S. at 974-75 (citing Roe v. Wade, 410 U.S. 113, 165 (1973) ("[t]he State may define the term 'physician,' . . . to mean only a physician licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined"); Connecticut v. Menillo, 423 U.S. 9, 11 (1975) (per curiam) ("prosecutions for abortions conducted by nonphysicians infringe upon no realm of personal privacy secured by the Constitution against state interference"); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 447 (1983) ("to ensure the safety of the abortion procedure, the States may mandate that only physicians perform abortions")).

Finally, the Court rejected plaintiffs' argument that Supreme Court review was inappropriate in the light of the procedural posture of the case (an appeal before entry of a final judgment).  Review was appropriate, first, because the court of appeals' decision was "clearly erroneous under our precedents," and, second, because the "lower court's judgment has produced immediate consequences for Montana [enjoining enforcement of its law] and has created a real threat of such consequences for the six other States in the Ninth Circuit that have physician-only requirements."  Mazurek, 520 U.S. at 975.

The Dissenting Opinion

Justice Stevens, joined by Justices Ginsburg and Breyer, dissented from the Court's order granting review.  Without disagreeing with the Court's disposition of the merits of the underlying issue-whether the physician-only requirement imposed an "undue burden" on women seeking abortions in Montana-Justice Stevens expressed the view that the judgment of the court of appeals did not "justify review of the merits at this preliminary stage of the proceeding." Mazurek, 520 U.S. at 977 (Stevens, J., dissenting).  Based on the legislative history of the statute, however, which suggested that the statute was targeted at the only physician assistant in Montana who performed abortions, Justice Stevens said that "there is evidence from which one could conclude that the legislature's predominant motive was to make abortions more difficult," id. at 980, a purpose which, in his opinion, was prohibited by Planned Parenthood v. Casey, 505 U.S. at 901. Mazurek, 520 U.S. at 979-80.  Justice Stevens noted that the court of appeals did not reach the constitutional issue presented by the litigation-whether the States may prohibit a physician assistant from performing abortions-and said that the Court would have been "well advised to await further developments in the case before intervening."  Id. at 981.


The physician-only statute was later struck down, on state constitutional grounds (privacy), by the Montana Supreme Court in Armstrong v. State, 989 P.2d 364 (Mont. 1999).

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