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.

The Abortion Cases Part Six

Akron, Ohio, in City of Akron v. Akron Center for Reproductive Health, passed an ordinance regulating abortions. The majority opinion was written by Associate Justice Lewis F. Powell. The Court reaffirmed that the "State's interest in health regulation becomes compelling at approximately the end of the first trimester. The existence of a compelling state interest in health, however, is only the beginning of the inquiry. The State's regulation may be upheld only if it is reasonably designed to further that state interest." Further, "the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered."

The Court considered these aspects of the Akron ordinance:

(i) Section 1870.03 requires that all abortions performed after the first trimester of pregnancy be performed in a hospital

(ii) Section 1870.05 sets forth requirements for notification of and consent by parents before abortions may be performed on unmarried minors.

(iii) Section 1870.06 requires that the attending physician make certain specified statements to the patient "to insure that the consent for an abortion is truly informed consent."

(iv) Section 1870.07 requires a 24-hour waiting period between the time the woman signs a consent form and the time the abortion is performed.

(v) Section 1870.16 requires that fetal remains be "disposed of in a humane and sanitary manner."

The portion of the Akron ordinance requiring second trimester abortions to be performed in a hospital, §1870.03, was invalidated because the requirement placed an impermissible obstacle in the path of women seeking abortions. This unreasonably impinged on a woman's Constitutionally protected right to terminate pregnancy.

The Court invalidated the parental notification section of the Akron ordinance, §1870.05. This section imposed a blanket requirement, without regard for the maturity of the minor to make the decision for herself. The ordinance lacked alternative measures required by Bellotti. Stay tuned, this won't be the last case for the City Akron regarding parental notification

The Court affirmed the Court of Appeals in finding Constitutionally infirm that the portion of the ordinance, §1870.06 (b), where the physician was required to inform the mother that unborn child is a human child from the moment of conception. This requirement was "inconsistent with the Court's holding in Roe v. Wade that a State may not adopt one theory of when life begins to justify its regulation of abortions."

Then the Court affirmed the validity of §1870.06 (c), the portion of the ordinance where the information regarding the risks of the procedure, and shared medical judgments regarding the decision to abort or carry the fetus to term. The section was struck down because it did not permit anyone other than the physician to communicate this information to the patient.

The 24 hour waiting period was struck down as being arbitrary. Powell said that "[i]n accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her. But if a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision."

The Court struck down as impermissibly vague §1870.16 requiring humane disposition of fetal remains. What humane meant was important because failure to comply triggered a criminal sanction. Were the physicians required to provide for embryonic funerals? The Court said that before conduct is criminalized, the actus reus or the criminal act must be set forth specifically.

Associate Justice Sandra Day O'Connor

Associate Justice Sandra Day O'Connor wrote a dissenting opinion She addressed the self collapsing nature of the decision in Roe v. Wade. The three trimester stages designated under Roe was unworkable because advances in science kept moving back the viability date where the fetus could survive ex utereo. These advancements kept moving back to the date where the states' interest in preserving human life attached.

Justice O'Connor's opinion would replace the trimester test with the unduly burdensome standard the Court used in Maher v. Roe. Here the Court rules that it has an interest in maternal health as well as in potential human life. O'Connor says " the point at which these interests become compelling does not depend on the trimester of pregnancy. Rather, these interests are present throughout pregnancy."

Not every statutory scheme or regulation need be examined under strict scrutiny employing the compelling state interest test with its requirement that the state action be narrowly tailored. Rather, as the Court had ruled in Carey v. Population Services, a case about contraceptives, "It was necessary that the state law impose a significant burden on a protected right, or that it burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision."

O'Connor said "the Court recognizes that even a "significant obstacle" can be justified by a "reasonable" regulation." She goes on to say " The "undue burden" required in the abortion cases represents the required threshold inquiry that must be conducted before this Court can require a State to justify its legislative actions under the exacting "compelling state interest" standard."

City of Akron v. Akron Center for Reproductive Health was decided in 1983.

The Abortion Cases Part Four

The parental consent issue reared its head again in Bellotti v. Baird. Massachusetts enacted a parental notification statute requiring consent from the parents be given prior to the procedure. If one or both of the parents refuse consent, then consent can be granted by an order of a judge of the superior court.

Justice Blackmun delivered the Court's opinion. Citing Planned Parenthood of Central Missouri v, Danforth he said the State may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy."

Although such deference to parents may be permissible with respect to other choices facing a minor, the unique nature and consequences of the abortion decision make it inappropriate to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent..

We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.

Massachusetts law was constitutionally infirm in two respects: First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.

Bellotti v. Baird was decided in 1979.

Maher v. Roe, Beal v, Doe, Poelker v. Doe are companion cases. Maher v. Roe and Poelker v. Doe each deal with statutes that limited the use of public funds in paying for abortions. These two cases each ask the question if Connecticut, in the Maher case, and the city of Saint Louis, Missouri, in the Poelker case, violated the Equal Protection Clause of the Fourteenth Amendment.

In Maher the Court held that Connecticut placed no obstacles in the pregnant woman's path to an abortion. The statute did not impinge upon the fundamental right recognized in Roe v Wade. Associate Justice Lewis F. Powell delivered the opinions for the Court in these 6 to 3 decisions.

Associate Justice Lewis F. Powell

Powell said The Equal Protection Clause does not require a State participating in the Medicaid program to pay the expenses incident to nontherapeutic abortions for indigent women simply because it has made a policy choice to pay expenses incident to childbirth. Financial need alone does not identify a suspect class for purposes of equal protection analysis.

The extent of the fundamental right recognized in Roe was distinguished. That right implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds. An indigent woman desiring an abortion is not disadvantaged by Connecticut's decision to fund childbirth; she continues as before to be dependent on private abortion services.

A State is not required to show a compelling interest for its policy choice to favor normal childbirth. Connecticut's regulation is rationally related to and furthers its "strong and legitimate interest in encouraging normal childbirth," citing Beal v. Doe. Subsidizing costs incident to childbirth is a rational means of encouraging childbirth. States, moreover, have a wide latitude in choosing among competing demands for limited public funds.

Since the Court found no fundamental right being affected it used the rational means test rather than the heightened compelling state interest test, with its restrictive component requiring the statute to be narrowly tailored.

Here, a prior written request for the abortion procedure was upheld. Since it is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes, the District Court erred in invalidating the requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services for abortions. Although similar requirements are not imposed for other medical procedures, such procedures do not involve the termination of a potential human life.

The Poelker case came next. Justice Powell relied on the Maher decision when discussing Saint Louis' policy. The policy of denying city funds for abortions such as that desired by Doe is subject to public debate and approval or disapproval at the polls. We merely hold, for the reasons stated in Maher, that the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done.

The issue in Beal v, Doe focuses on whether Title XIX of the Social Security Act require states that participate in the Medicaid program to fund the cost of nontherapeutic abortions. This case originated in Pennsylvania.

Powell's opinion for the 6 to 3 court said nothing in the language of Title XIX requires a participating State to fund every medical procedure falling within the delineated categories of medical care. Each State is given broad discretion to determine the extent of medical assistance that is "reasonable" and "consistent with the objectives" of Title XIX

The State, Powell said, has a strong interest in encouraging normal childbirth that exists throughout the course of a woman's pregnancy, and nothing in Title XIX suggests that it is unreasonable for a State to further that interest. It therefore will not be presumed that Congress intended to condition a State's participation in Medicaid on its willingness to undercut that interest by subsidizing the costs of nontherapeutic abortions.

Powell said that when Congress passed Title XIX, nontherapeutic abortions were unlawful in most States, a fact that undermines the contention that Congress intended to require -- rather than permit -- participating States to fund such abortions. Moreover, the Department of Health, Education, and Welfare, the agency that administers Title XIX, takes the position that the Title allows, but does not mandate, funding for such abortions

The Court did not reach the issue of whether Pennsylvania's program under which financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing as to the medical necessity of the abortion interferes with the attending physician's medical judgment in a manner not contemplated by Congress should be considered on remand.

Maher v. Roe, Beal v, Doe, and Poelker v. Doe were decided in 1977.