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Planned Parenthood of Kansas City, MO v. Ashcroft (1983)

In Depth

Background

In 1982, the Missouri General Assembly enacted an abortion law requiring second-trimester abortions to be performed in a hospital; requiring the presence of a second physician during abortions performed after viability; requiring a pathology report for each abortion performed; and requiring minors to secure parental or judicial consent.  Planned Parenthood Association of Kansas City, Missouri, Inc., two physicians who perform abortions and an abortion clinic brought a lawsuit in federal district court against the Missouri Attorney General and other officials responsible for enforcing the law, alleging that the law violated the constitutional rights of physicians and those of their patients.  The district court declared all of the challenged provisions unconstitutional, except for the pathology report requirement.  The court of appeals affirmed the district court's judgment striking down the second-physician requirement; reversed the court's judgment striking down the parental consent requirement and upholding the pathology report requirement; and remanded the case to the district court for further proceedings and findings relative to the second-trimester hospitalization requirement.  On remand, the district court adhered to its holding that the second-trimester hospitalization requirement was constitutional.  The court of appeals affirmed.  The Supreme Court granted the defendants' petition for review.

The Statutes Under Review

Every abortion performed subsequent to the first twelve weeks of pregnancy shall be performed in a hospital.

Mo. Rev. Stat. § 188.025.

An abortion of a viable unborn child shall be performed or induced only when there is in attendance a physician other than the physician performing or inducing the abortion who shall take control of and provide immediate medical care for a child born as a result of the abortion.  During the performance of the abortion, the physician performing it, and subsequent to the abortion, the physician required by this section to be in attendance, shall take all reasonable steps in keeping with good medical practice, consistent with the procedure used, 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 mother.

Mo. Rev. Stat.§ 188.030.3

A representative sample of tissue removed at the time of the abortion shall be submitted to a board eligible or certified pathologist, who shall file a copy of the tissue report with the state division of health, and who shall provide a copy of the report to the abortion facility or hospital in which the abortion was performed or induced and the pathologist's report shall be made a part of the patient's permanent record.

Mo. Rev. Stat. § 188.047.

1. No person shall knowingly perform an abortion upon a pregnant woman under the age of eighteen years unless:

(1) The attending physician has secured the informed written consent of the minor and one parent or guardian; or

(2) The minor is emancipated and the attending physician has received the informed written consent of the minor; or

(3) The minor has been granted the right to self-consent to the abortion by court order pursuant to subsection 2 of this section, and the attending physician has received the informed written consent of the minor; or

(4) The minor has been granted consent to the abortion by court order, and the court has given its informed written consent in accordance with subsection 2 of this section, and the minor is having the abortion willingly, in compliance with subsection 3 of this section.

2. The right of a minor to self-consent to an abortion under subdivision (3) of subsection 1 of this section or court consent under subdivision (4) of subsection 1 of this section may be granted by a court pursuant to the following procedures:

(1) The minor or next friend shall make an application to the juvenile court which shall assist the minor or next friend in preparing the petition and notices required pursuant to this section.  The minor or the next friend of the minor shall thereafter file a petition setting forth the initials of the minor; the age of the minor; the names and addresses of each parent, guardian, or, if the minor's parents are deceased and no guardian has been appointed, any other person standing in loco parentis of the minor; that the minor has been fully informed of the risks and consequences of the abortion; that the minor is of sound mind and has sufficient intellectual capacity to consent to the abortion; that, if the court does not grant the minor majority rights for the purpose of consent to the abortion, the court should find that the abortion is in the best interest of the minor and give judicial consent to the abortion; that the court should appoint a guardian ad litem of the child; and if the minor does not have private counsel, that the court should appoint counsel.  The petition shall be signed by the minor or the next friend;

*                    *                    *

(3) A hearing on the merits of the petition, to be held on the record, shall be held as soon as possible within five days of the filing of the petition. . . . At the hearing, the court shall hear evidence relating to the emotional development, maturity, intellect and understanding of the minor; the nature, possible consequences, and alternatives to the abortion; and any other evidence that the court may find useful in determining whether the minor should be granted majority rights for the purpose of consenting to the abortion or whether the abortion is in the best interests of the minor;

(4) In the decree, the court shall for good cause:

(a) Grant the petition for majority rights for the purpose of consenting to the abortion; or

(b) Find the abortion to be in the best interests of the minor and give judicial consent to the abortion, setting forth the grounds for so finding; or

(c) Deny the petition, setting forth the grounds on which the petition is denied;

*                    *                    *

(6) The notice of intent to appeal shall be given within twenty-four hours from the date of issuance of the order.  The record on appeal shall be completed and the appeal shall be perfected within five days from the filing of notice to appeal.  Because time may be of the essence regarding the performance of the abortion, the supreme court of this state shall, by court rule, provide for expedited appellate review of cases appealed under this section.

3. If a minor desires an abortion, then she shall be orally informed of and, if possible, sign the written consent required by section 188.039 in the same manner as an adult person.  No abortion shall be performed on any minor against her will, except than an abortion may be performed against the will of a minor pursuant to a court order described in subdivision (4) of subsection 1 of this section that the abortion is necessary to preserve the life of the minor.

Mo. Rev. Stat. § 188.028.

The Court's Holding

By a six-to-three vote, the Court struck down the second-trimester hospitalization requirement, § 188.025.  By a five-to-four vote, however, the Court upheld the second-physician requirement, § 188.030.3, the pathology report requirement, § 188.047, and the parental consent requirement, § 188.028.

The Court's Reasoning

Second-Trimester Hospitalization Requirement

By a vote of six-to-three, the Court struck down the requirement that all abortions after the first twelve weeks of pregnancy be performed in hospitals.  Ashcroft, 462 U.S. at 481-82.  Missouri law did not define the term "hospital" in its statutory provisions regulating abortions.  The Court assumed, therefore, as the lower courts did, that, as used in § 188.025, the term "has its common meaning of a general, acute-care facility."  Id. at 481 n. 6.  Based on its decision the same day in City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 431-39 (1983), striking down a similar second-trimester hospitalization requirement, the Court invalidated § 188.025.  Ashcroft, 462 U.S. at 481-82 (for an analysis of the constitutional issues decided in City of Akron, please see the summary for that case).

Second-Physician Requirement

The plaintiffs argued that the lower courts' judgments that § 188.030.3 was unconstitutional and should be affirmed because "the second-physician requirement distorts the traditional doctor-patient relationship, and is both impractical and costly."  Ashcroft, 462 U.S. at 484 (setting forth plaintiffs' argument).  Plaintiffs noted that Missouri "does not require two physicians in attendance for any other medical or surgical procedure, including childbirth or delivery of a premature infant."  Id. at 484-85.

By a vote of five-to-four, the Court upheld the second-physician requirement.  Ashcroft, 462 U.S. at 482-86.  Relying upon Roe v. Wade, the majority noted that the State has a compelling interest in the life of a viable fetus. Id. at 482 (citing and quoting Roe).  The requirement that a second physician be present during a post-viability abortion was intended to protect that interest.

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, 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 life and health of the child.

Id. at 485.  "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."  Id. Given the "compelling interest" that the State has in preserving life, the requirement that a second physician be present in the "unusual circumstances where Missouri permits a third-trimester abortion" was not unconstitutional. Id. at 485-86.  Admittedly, "[p]reserving the life of a viable fetus that is aborted may not often be possible, but the State legitimately may choose to provide safeguards for the comparatively few instances of live birth that occur."  Id. at 486.  The Court concluded that the second-physician requirement "reasonably furthers the State's compelling interest in protecting the lives of viable fetuses . . . ."  Id.

In a footnote at the beginning of its discussion of § 188.030.3, the Court addressed the lower courts' findings that "there [was] no possible justification for a second-physician requirement whenever a D&E [dilation and evacuation] is used because no viable fetus can survive a D&E procedure."  Ashcroft, 462 U.S. 483 n. 7 (summarizing findings).  This reasoning, the Court observed, assumed, first, that a fetus cannot survive a D&E abortion, and second, that D&E is the method of choice in the third trimester.  Id.  While there is general agreement as to the first assumption (a D&E typically involves the dismemberment of the fetus), there was no agreement as to the second.  At the time Ashcroft was decided, there was no evidence that D&E was used

as a third-trimester abortion technique.  Id. Nor was there any evidence in the record that D&E would pose a lesser risk to the woman than any other abortion technique used during the third trimester (e.g., induction).  Id. Even assuming, however, that "there may be the rare case when a physician may think honestly that D&E is required for the mother's health," that did not render § 188.030.3 unconstitutionally overbroad.  As the Court noted, "Legislation need not accommodate every conceivable contingency."  Id.

The Pathology Report Requirement

The plaintiffs argued that the requirement set forth in § 188.047, that a representative sample of tissue removed at the time of the abortion be submitted for examination by a pathologist, was unnecessary and needlessly added to the cost of an abortion.  Ashcroft, 462 U.S. at 488-90.

By a vote of five-to-four, the Court rejected plaintiffs' argument and upheld the pathology report requirement.  Ashcroft, 462 U.S. at 486-90.  The Court noted that, subject to limited exceptions, Missouri law required all tissue surgically removed at a hospital be examined by a pathologist, either at the hospital or elsewhere.  Id. at 486.  In enacting §188.047, the State extended that requirement to tissue removed during an abortion, no matter where performed.  The Court found that "[o]n its face and in effect, § 188.047 is reasonably related to generally accepted medical standards" and furthers "important health-related state concerns," e.g., detecting "abnormalities in the tissue that may warn of serious, possibly fatal disorders."  Id. at 487 (citation and internal quotation marks omitted).  "As a rule, it is accepted medical practice to submit all tissue to the examination of a pathologist."  Id. (emphasis in original).  "This is particularly important following abortion," the Court emphasized, "because questions remain as to the long-range complications and their effect on subsequent pregnancies."  Id. at 487-88.

 

The Court dismissed plaintiffs' claim that "the physician performing the abortion is as qualified as a pathologist to make the examination."  Ashcroft, 462 U.S. at 488.  "This argument," the Court observed, "disregards the fact that Missouri requires a pathologist-not the performing physician-to examine tissue after almost every type of surgery."  Although that requirement is in a provision of law relating to surgical procedures performed in hospitals, "[n]o reason has been suggested why the prudence required in a hospital should not be equally appropriate in [an outpatient] clinic."  Id.  Indeed, given the fact that "not all abortion clinics, particularly inadequately regulated clinics, conform to ethical or generally accepted medical standards," "there may be good reason to impose stricter standards in this respect on clinics performing abortions than on hospitals."  Id. & n. 12.  In striking the balance between "protection of a woman's health" and "the comparatively small additional cost of a pathologist's examination," the Court was unable to conclude that "the Constitution requires that a State subordinate its interest in health to minimize to this extent the cost of abortions." Id. at 489.  "[T]he cost of a tissue examination does not significantly burden a pregnant woman's abortion decision," and its "small cost," estimated at less than $20.00 at the time of trial, was clearly justified "in light of the substantial benefits that a pathologist's examination can have . . . ."  Id. at 490.

 

Parental Consent

 

The court of appeals held that, in a judicial bypass hearing conducted under § 188.028.2(4), a juvenile court could not deny a minor's petition for waiver of parental consent for "good cause" unless it determined that (a) the minor was not emancipated; (b) she was not mature enough to make her own decision regarding an abortion; and (c) an abortion was not in her best interests.  Plaintiffs argued that this interpretation of the statute was unreasonable, Ashcroft, 462 U.S. at 493, but the Court rejected their argument.  Justice Powell stated that, "[w]here fairly possible, courts should construe a statute to avoid a danger of unconstitutionality."  Id.  The court of appeals' interpretation of the statute was reasonable and brought it within the permissible scope of parental consent statutes under the standards the Court had enunciated in Bellotti v. Baird, 443 U.S. 622, 640-42 (1979) (plurality opinion), id. at 656-57 (White, J., dissenting) (for an analysis of the constitutional issue decided in Bellotti-whether States may require parental consent, subject to a judicial bypass procedure-please see the summary for that case).  Section 188.028.2(6) required the Missouri Supreme Court to adopt a rule that would provide for "expedited appellate review of cases appealed under this section."  In a footnote, Justice Powell commented that "[t]here is no reason to believe that Missouri will not expedite any appeal consistent with the mandate in our prior opinions."  Ashcroft, 462 U.S. at 491 n. 16.  In the same note, Justice Powell stated that the statute protected the confidentiality of the minor.  Id.

 

The Concurring And Dissenting Opinions

 

Justice O'Connor, joined by Justices White and Rehnquist, concurred in the judgment in part and dissented in part.  Justice O'Connor concurred in the judgment upholding the second-physician, requirement, the pathology report requirement and the parental consent requirement, but for different reasons that those articulated by Justice Powell.  Ashcroft, 462 U.S. at 505 (O'Connor, J., concurring in the judgment in part and dissenting in part).  With respect to the second-physician requirement (which applies only after viability), Justice O'Connor said that "the State possesses a compelling interest in protecting and preserving fetal life," which interest "is extant throughout pregnancy."  Id. Neither the pathology report requirement nor the parental consent requirement imposed an "undue burden" on the right to abortion.  Id.

 

Justice O'Connor dissented from the Court's invalidation of the second-trimester hospitalization requirement for the reasons set forth in her dissent in City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 431-39 (1983), striking down a similar second-trimester hospitalization requirement.  For an analysis of her dissent in City of Akron, please see the summary for that case.

 

Justice Blackmun, joined by Justices Brennan, Marshall and Stevens, concurred in part and dissented in part.  Justice Blackmun concurred in the Court's decision to strike down the second-trimester hospitalization requirement, but dissented from the Court's decision upholding the second-physician requirement, the pathology report requirement and the parental consent requirement.  Ashcroft, 462 U.S. at 494-504 (Blackmun, J., concurring in part and dissenting in part. The pathology report requirement, in Justice Blackmun's opinion, was unnecessary, burdensome and simply added to the cost of the abortion procedure.  Id. at 494-98.  The second-physician requirement could not logically be applied to a D&E procedure, which "entails no chance of fetal survival, . . . .  Id. at 499.  Justice Blackmun disputed Justice Powell's opinion that, as of the time of trial, D&E was seldom, if ever, used as a third-trimester abortion technique.  Id. at 499-501 & n. 5.  Because the second-physician requirement was not "tailored to protect the State's legitimate interests," Justice Blackmun would have held it unconstitutional.  Id. at 501.  He also expressed concern that the second-physician requirement failed to provide a clear exception for medical emergencies, id. at 501-03, a concern that Justice Powell determined was unfounded, given other language in the statute.  See, id., at 485 n. 8 (Opinion of Powell, J.).  Finally, Justice Blackmun, relying upon Justice Stevens' opinion in Bellotti v. Baird, 443 U.S. 622, 655-56 (1979) (Stevens, J., concurring in the judgment), expressed the view that the Constitution did not permit anyone-either a parent or a judge-to exercise a veto over a pregnant minor's decision to obtain an abortion.  Ashcroft, 462 U.S. at 503-04 (for an analysis of the constitutional issue decided in Bellotti, as well as Justice Stevens' concurring opinion, please see the summary for that case).

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