Thursday, June 17, 2010

The Abortion Cases Part Seven

In Planned Parenthood Association v. Ashcroft a sharply divided Court struck down part of a Missouri statute while upholding other sections of the law. This is another opinion by Associate Justice Lewis F. Powell. Well, he wrote Parts I & II of the opinion, he was joined in the balance by Chief Justice Warren E. Burger

Chief Justice Warren E. Burger

The parts of the Missouri statute being scrutinized were §188.025 requiring abortions after 12 weeks of pregnancy to be performed in a hospital; §188.047 mandating a pathology report for each abortion performed; §188.030.3 mandating the presence of a second physician in post viability abortions; and §188.028 requiring minors to have either parental consent or consent of the Juvenile Court prior to abortions being performed on them.

The provision requiring second trimester abortions to be performed only in hospitals was struck down, as it was in City of Akron v. Akron Center for Reproductive Health. Thus §188.025 unreasonably infringes upon a woman's constitutional right to obtain an abortion."

The Court noted that "[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." The Court found that the second-physician requirement of §188.030.3 "reasonably furthers the State's compelling interest in protecting the lives of viable fetuses" and found the section to be Constitutionally permissible.

The Court found the requirement of a pathology report, §188.047, to have a relatively insignificant burden on the right of a woman to procure an abortion. This section was upheld.

Relying on the reasoning from the Bellotti case the Court found the Missouri parental consent form, §188.028, valid because a Missouri Court would have to find good cause, supported by required evidence that the minor was not mature enough to make her own decisions in order to deny a minor's request for judicial consent for an abortion.

Associate Justice Sandra Day O'Connor, joined by Associate Justices White and Rehnquist found  the second-physician requirement of 188.030.3 is constitutional because the State has a compelling interest, extant throughout pregnancy, in protecting and preserving fetal life; The pathology-report requirement of 188.047 is constitutional because it imposes no undue burden on the limited right to undergo an abortion, and its validity is not contingent on the trimester of pregnancy in which it is imposed; and Assuming, arguendo, that the State cannot impose a parental veto on a minor's decision to undergo an abortion, the parental consent provision of 188.028.2 is constitutional because it imposes no undue burden on any right that a minor may have to undergo an abortion.

Planned Parenthood Association v. Ashcroft was decided in 1983.

Next came a rare 8 to 1 decision rendered by Justice Powell, in which Chief Justice Burger, and Justices Brennan, Marshall, and Blackmun joined. Justices White, Rehnquist, and O'Connor joined in Parts I and II of Powell's opinion. Justice O'Connor filed an opinion concurring in part and concurring in the judgment, which was joined by Justices White and Rehnquist. Justice Stevens filed a dissenting opinion

Virginia had passed a law requiring second trimester abortions to be performed at a hospital. Differing from Missouri in Planned Parenthood Association v. Ashcroft and Ohio in City of Akron v. Akron Center for Reproductive Health, the Virginia statute licensed outpatient surgical centers as hospitals.

Powell's opinion in Simopoulos v. Virginia held that Virginia's requirement that second trimester abortions be performed in hospitals is not an unreasonable means of furthering the State's important and legitimate interest in protecting the woman's health, which interest becomes "compelling" at approximately the end of the first trimester.

The Missouri and Ohio statutes required abortions to be performed at general acute-care facilities. Because Virginia law permits abortions to be performed in licensed outpatient clinics City of Akron v. Akron Center for Reproductive Health and Planned Parenthood Association v. Ashcroft do not control the outcome of this case.

Although a State's discretion in determining standards for the licensing of medical facilities does not permit it to adopt abortion regulations departing  from accepted medical practice, the Virginia regulations on their face are compatible with accepted medical standards governing outpatient second trimester abortions.

Simopoulos v. Virginia was decided in 1983.

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