492 U.S. 490, 517-522 (1989)
In June 1986, the Governor of Missouri signed into law Missouri Senate Committee Substitute for House Bill No. 1596, which amended existing state law concerning unborn children and abortions.1
The Act consisted of 20 provisions, five of which are before the Court.2 The preamble contains findings that the life of each human being begins at conception and that unborn children have protectable interests in life, health, and well-being.3 The Act requires that prior to performing an abortion on any woman whom a physician has reason to believe is 20 or more weeks pregnant, the physician ascertain whether the fetus is viable by performing such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child.4 The Act also prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life and prohibits the use of public funds, employees, or facilities for encouraging or counseling a woman to have an abortion not necessary to save her life.5
In July 1986, five health professionals employed by the State and two nonprofit corporations brought this class action in the United States District Court for the Western District of Missouri.6 The plaintiffs sought declaratory and injunctive relief on the ground that certain statutory provisions violated the First, Fourth, Ninth, and Fourteenth Amendments.7 The two nonprofit corporations are Reproductive Health Services, which offers family planning and gynecological services including abortion services up to 22 weeks gestational age, and Planned Parenthood of Kansas City, which provides abortion services up to 14 weeks gestational age.8 The individual plaintiffs are three physicians, one nurse, and a social worker, all public employees at public facilities who encourage and counsel pregnant women to have nontherapeutic abortions, with two of the physicians performing abortions.9
Several weeks after the complaint was filed, the District Court temporarily restrained enforcement of several provisions of the Act.10 Following a 3-day trial in December 1986, the District Court declared seven provisions of the Act unconstitutional and enjoined their enforcement, including the preamble, the informed consent provision, the requirement that post-16-week abortions be performed only in hospitals, the mandated tests to determine viability, and the prohibition on the use of public funds, employees, and facilities to perform or assist nontherapeutic abortions.11
The Court of Appeals for the Eighth Circuit affirmed, with one exception not relevant to this appeal.12 The Court of Appeals determined that Missouri's declaration that life begins at conception was an impermissible state adoption of a theory of when life begins.13 It held that the requirement that physicians perform viability tests was an unconstitutional legislative intrusion on a matter of medical skill and judgment.14 The Court of Appeals invalidated Missouri's prohibition on the use of public facilities and employees to perform or assist abortions not necessary to save the mother's life.15 It distinguished our decisions in Harris v. McRae, 448 U. S. 297 (1980), and Maher v. Roe, 432 U. S. 464 (1977), on the ground that there is a fundamental difference between providing direct funding to effect the abortion decision and allowing staff physicians to perform abortions at an existing publicly owned hospital.16 The Court of Appeals struck down the provision prohibiting the use of public funds for encouraging or counseling women to have nontherapeutic abortions, for the reason that this provision was both overly vague and inconsistent with the right to an abortion enunciated in Roe v. Wade.17
The Supreme Court noted probable jurisdiction to consider the constitutionality of the Missouri statute.18
Whether the preamble to the Missouri abortion statute declaring that the life of each human being begins at conception is constitutional?19
The State may express a value judgment favoring childbirth over abortion without violating the Constitution.20 The preamble does not by its terms regulate abortion in any way.21 It is simply a statement of the state's value judgment that the life of each human being begins at conception.22 It does not regulate or proscribe any action.23 It is not coercive. It does not affect the ability of a woman to obtain an abortion.24
Yes. The preamble to the Missouri statute, signed into law by the Governor in June 1986 as part of House Bill No. 1596, contains findings that the life of each human being begins at conception and that unborn children have protectable interests in life, health, and well-being. This preamble is simply a value judgment that the state is entitled to make. The Court of Appeals held that the preamble had substantive impact because it might be used to interpret other state statutes.25 The Court need not decide whether the preamble has any substantive effect because it does not by its terms regulate abortion in any way.26
The plaintiffs, including Reproductive Health Services and Planned Parenthood of Kansas City, challenged the preamble in their July 1986 class action in the District Court for the Western District of Missouri.27 The preamble imposes no substantive restrictions on abortions.28
The preamble is constitutional.
Whether the provisions of the Missouri statute prohibiting the use of public employees and facilities to perform or assist nontherapeutic abortions are constitutional?29
The State may make a value judgment favoring childbirth over abortion and implement that judgment by the allocation of public resources.30 The State's decision to use public facilities and staff to encourage childbirth over abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.31
Yes. The Missouri statute prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life.32 This provision is a direct expression of the state's preference for childbirth over abortion.33 The Act does not prohibit a woman from obtaining an abortion.34
It simply states that public facilities and employees will not be used to perform or assist abortions not necessary to save the mother's life.35 The Court of Appeals invalidated this provision.36 The Supreme Court reversed, holding that the state may choose not to allocate its resources in a way that encourages or supports abortion.37 The facts establish that the individual plaintiffs are public employees at public facilities who perform abortions and counsel women to have nontherapeutic abortions.38 The prohibition leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all.39
The provisions prohibiting the use of public employees and facilities are constitutional.40
Whether the provision of the Missouri statute prohibiting the use of public funds, employees, or facilities to encourage or counsel women to have nontherapeutic abortions is constitutional?41
The State may make a value judgment favoring childbirth over abortion and implement that judgment by the allocation of public resources. A majority of the Court agrees that the controversy over the public funding provision for counseling is now moot.42
No. The Missouri Act prohibits the use of public funds, employees, or facilities for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life.43 The Court of Appeals struck down this provision as unconstitutionally vague and inconsistent with the right to an abortion.44 The Supreme Court accepted the State's claim that the provision is directed solely at those persons responsible for expending public funds and not at the conduct of any physician or health care provider.45 A majority of the Court agrees with appellees that the controversy over this provision is now moot because appellees no longer seek a declaratory judgment that it is unconstitutional.46
The Court therefore directs the Court of Appeals to vacate the judgment of the District Court with instructions to dismiss the relevant part of the complaint.47
The provision is moot and the lower court judgment on it is vacated.48
Whether the viability testing provision of the Missouri statute requiring physicians to perform tests to determine fetal viability for women believed to be 20 or more weeks pregnant is constitutional?49
The State has a compelling interest in protecting potential human life.50 The viability testing provision is reasonably related to that interest.51 It does not impose an undue burden on a woman's right to abortion.52 The statute requires only those tests that are useful to making subsidiary findings as to viability and that it would not be imprudent or careless to perform.53
Yes. The viability testing provision requires a physician, prior to performing an abortion on a woman whom he has reason to believe is 20 or more weeks pregnant, to perform such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child.54 The Court of Appeals held that this provision was unconstitutional because it imposed an undue burden on a woman's right to abortion.55 The Supreme Court disagrees.
The statute does not require the performance of tests that are not necessary to make a determination of viability.56 It simply requires that the physician perform those tests that in his best medical judgment are necessary to determine viability.57 The facts show that the District Court found that there may be a 4-week error in estimating gestational age, which supports testing at 20 weeks.58 The provision permissibly furthers the State's interest in protecting potential human life.59
The viability testing provision is constitutional.60
Related opinions on this issue
Justice O’Connor concurs in the judgment and agrees that the viability testing provision does not impose an undue burden on a woman's right to abortion.61 She emphasizes that the provision requires only those tests that in the physician's best medical judgment are necessary to determine viability.62 She does not require any particular test or tests that are not medically indicated.63 She agrees that the statute is constitutional under the principles established in Roe v. Wade and subsequent cases.64 It does not prohibit a woman from obtaining an abortion but simply requires the physician to make a determination of viability when the fetus is 20 or more weeks gestational age.65
She also agrees that the preamble does not regulate or proscribe abortion in any way.66 It is simply a statement of the state's value judgment with no substantive effect.67
Justice Scalia joins the opinion of the Court except for Part IV and agrees that the viability testing provision is constitutional but would uphold it on a different ground.68 He states that the Court's opinion in Roe v. Wade is not grounded in the text of the Constitution and is a judicial creation.69 The Constitution does not contain a right to abortion.70 The states are free to regulate or prohibit abortion as they see fit.71
He views the Missouri statute as a reasonable regulation of abortion that does not prohibit abortion but simply requires the physician to make a determination of viability when the fetus is 20 or more weeks gestational age.72 It serves as a reasonable means of protecting potential human life.73 He would uphold the statute in its entirety.74
Joined by Justices Brennan And Marshall
Justice Blackmun dissents and argues that the Court today retreats from the principles established in Roe v. Wade.75 He contends that the Missouri statute is an attempt to chip away at the right to abortion recognized in Roe.76 The viability testing provision imposes an undue burden on a woman's right to choose an abortion because it requires the performance of tests that may be unnecessary and that may increase the cost of the procedure.77
He views it as an attempt to discourage women from obtaining abortions.78 He also argues that the preamble is unconstitutional because it declares that life begins at conception.79 This is an attempt to define when life begins, a question that the Court in Roe left to the individual.80 He would affirm the judgment of the Court of Appeals.8182
Justice Stevens joins Justice Blackmun’s opinion but writes separately to express his view that the Missouri statute is unconstitutional in its entirety.83 He argues that the statute is an attempt to overturn the principles of Roe v. Wade and is not a neutral regulation but is designed to discourage and prevent women from obtaining abortions.84 The viability testing provision is particularly troubling because it requires the performance of tests that may not be medically necessary.85 It increases the cost of the procedure and may delay the performance of the abortion, constituting an undue burden on the right to abortion.86
He would affirm the judgment of the Court of Appeals.
Whether Roe v. Wade should be overruled?87
The facts of the present case differ from those at issue in Roe v. Wade.88 This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, and we leave it undisturbed. To the extent indicated in the opinion, the Court would modify and narrow Roe and succeeding cases.89
No. The Supreme Court notes that both appellants and the United States as amicus curiae urged that the Court overrule its decision in Roe v. Wade.90 However, the facts of the present case differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded.91 In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake.92
This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, and we leave it undisturbed. The Court states that to the extent indicated in its opinion, it would modify and narrow Roe and succeeding cases, but it does not overrule Roe.
Roe v. Wade should not be overruled.