Webster v. Reproductive Health Services 1989 PDF

OCTOBER TERM, 1988 Syllabus 492 U. S. WEBSTER, ATTORNEY GENERAL OF MISSOURI, ET AL. v. REPRODUCTIVE HEALTH SERVICES ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 88-605. Argued April 26, 1989-Decided July 3, 1989 Appellees, state-employed health professionals and private nonprofit cor- porations providing abortion services, brought suit in the District Court for declaratory and injunctive relief challenging the constitutionality of a Missouri statute regulating the performance of abortions. The statute, inter alia: (1) sets forth "findings" in its preamble that "[t]he life of each human being begins at conception," and that "unborn children have pro- tectable interests in life, health, and well-being," §§ 1.205.1(1), (2), and requires that all state laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents, § 1.205.2; (2) specifies that a physician, prior to performing an abortion on any woman whom he has reason to believe is 20 or more weeks pregnant, must ascertain whether the fetus is "viable" by performing "such medical examinations and tests as are necessary to make a finding of [the fetus'] gestational age, weight, and lung maturity," § 188.029; (3) prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, §§ 188.210, 188.215; and (4) makes it unlawful to use public funds, employees, or facilities for the purpose of "encouraging or coun- seling" a woman to have an abortion not necessary to save her life, §§ 188.205, 188.210, 188.215. The District Court struck down each of the above provisions, among others, and enjoined their enforcement. The Court of Appeals affirmed, ruling that the provisions in question vio- lated this Court's decisions in Roe v. Wade, 410 U. S. 113, and subse- quent cases. Held: The judgment is reversed. 851 F. 2d 1071, reversed. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I,II-A, II-B, and II-C, concluding that: 1. This Court need not pass on the constitutionality of the Missouri statute's preamble. In invalidating the preamble, the Court of Appeals misconceived the meaning of the dictum in Akron v. Akron Centerfor Reproductive Health, Inc., 462 U. S. 416, 444, that "a State may not adopt one theory of when life begins to justify its regulation of abor- WEBSTER v. REPRODUCTIVE HEALTH SERVICES 491 490 Syllabus tions." That statement means only that a State could not "justify" any abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. The preamble does not by its terms regulate abortions or any other aspect of appellees' medical practice, and § 1.205.2 can be interpreted to do no more than offer protections to unborn children in tort and probate law, which is permissible under Roe v. Wade, supra,at 161-162. This Court has em- phasized that Roe implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion, Maher v. Roe, 432 U. S.464, 474, and the preamble can be read simply to express that sort of value judgment. The extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the state courts can definitively decide, and, until those courts have applied the preamble to restrict appellees' activities in some con- crete way, it is inappropriate for federal courts to address its meaning. Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 460. Pp. 504-507. 2. The restrictions in §§ 188.210 and 188.215 of the Missouri statute on the use of public employees and facilities for the performance or assist- ance of nontherapeutic abortions do not contravene this Court's abortion decisions. The Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to se- cure life, liberty, or property interests of which the government may not deprive the individual. DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 196. Thus, in Maher v. Roe, supra; Poelker v. Doe, 432 U. S. 519; and Harris v. McRae, 448 U. S.297, this Court upheld governmental regulations withholding public funds for nonthera- peutic abortions but allowing payments for medical services related to childbirth, recognizing that a government's decision to favor childbirth over abortion through the allocation of public funds does not violate Roe v. Wade. A State may implement that same value judgment through the allocation of other public resources, such as hospitals and medical staff. There is no merit to the claim that Maher, Poelker, and McRae must be distinguished on the grounds that preventing access to a public facility narrows or forecloses the availability of abortion. Just as in those cases, Missouri's decision to use public facilities and employees to encourage childbirth over abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but leaves her with the same choices as if the State had decided not to operate any hospitals at all. The challenged provisions restrict her ability to obtain an abortion only to the extent that she chooses to use a physician affili- ated with a public hospital. Also without merit is the assertion that OCTOBER TERM, 1988 Syllabus 492 U. S. alaher, Poelker, and McRae must be distinguished on the ground that, since the evidence shows that all of a public facility's costs in providing abortion services are recouped when the patient pays such that no public funds are expended, the Missouri statute goes beyond expressing a pref- erence for childbirth over abortion by creating an obstacle to the right to choose abortion that cannot stand absent a compelling state interest. Nothing in the Constitution requires States to enter or remain in the abortion business or entitles private physicians and their patients access to public facilities for the performance of abortions. Indeed, if the State does recoup all of its costs in performing abortions and no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or em- ployees for performing abortions. The cases in question all support the view that the State need not commit any resources to performing abor- tions, even if it can turn a profit by doing so. Pp. 507-511. 3. The controversy over § 188.205's prohibition on the use of public funds to encourage or counsel a woman to have a nontherapeutic abor- tion is moot. The Court of Appeals did not consider § 188.205 separately fr-om H 188.210 and 188.215-which respectively prohibit the use of pub- lic employees and facilities for such counseling-in holding all three sec- tions unconstitutionally vague and violative of a woman's right to choose an abortion. Missouri has appealed only the invalidation of § 188.205. In light of the State's claim, which this Court accepts for purposes of decision, that § 188.205 is not directed at the primary conduct of physi- cians or health care providers, but is simply an instruction to the State's fiscal officers not to allocate public funds for abortion counseling, appel- lees contend that they are not "adversely" affected by the section and therefore that there is no longer a case or controversy before the Court on this question. Since plaintiffs are masters of their complaints even at the appellate stage, and since appellees no longer seek equitable relief on their § 188.205 claim, the Court of Appeals is directed to vacate the District Court's judgment with instructions to dismiss the relevant part of the complaint with prejudice. Deakins v. Monaghan, 484 U. S. 193, 200. Pp. 511-513. THE CHIEF JUSTICE, joined by JUSTICE WHITE and JUSTICE KEN- NEDY, concluded in Parts II-D and III that: 1. Section 188.029 of the Missouri statute-which specifies, in its first sentence, that a physician, before performing an abortion on a woman he has reason to believe is carrying an unborn child of 20 or more weeks gestational age, shall first determine if the unborn child is viable by using that degree of care, skill, and proficiency that is commonly exer- cised by practitioners in the field; but which then provides, in its second sentence, that, in making the viability determination, the physician shall WEBSTER v. REPRODUCTIVE HEALTH SERVICES 493 490 Syllabus perform such medical examinations and tests as are necessary to make a finding of the unborn child's gestational age, weight, and lung matu- rity-is constitutional, since it permissibly furthers the State's interest in protecting potential human life. Pp. 513-521. (a) The Court of Appeals committed plain error in reading § 188.029 as requiring that after 20 weeks the specified tests must be performed. That section makes sense only if its second sentence is read to require only those tests that are useful in making subsidiary viability findings. Reading the sentence to require the tests in all circumstances, includ- ing when the physician's reasonable professional judgment indicates that they would be irrelevant to determining viability or even dangerous to the mother and the fetus, would conflict with the first sentence's require- ment that the physician apply his reasonable professional skill and judg- ment. It would also be incongruous to read the provision, especially the word "necessary," to require tests irrelevant to the expressed statutory purpose of determining viability. Pp. 514-515. (b) Section 188.029 is reasonably designed to ensure that abortions are not performed where the fetus is viable. The section's tests are in- tended to determine viability, the State having chosen viability as the point at which its interest in potential human life must be safeguarded. The section creates what is essentially a presumption of viability at 20 weeks, which the physician, prior to performing an abortion, must rebut with tests-including, if feasible, those for gestational age, fetal weight, and lung capacity-indicating that the fetus is not viable. While the District Court found that uncontradicted medical evidence established that a 20-week fetus is not viable, and that 231/2 to 24 weeks' gestation is the earliest point at which a reasonable possibility of viability exists, it also found that there may be a 4-week error in estimating gestational age, which supports testing at 20 weeks. Pp. 515-516. (c) Section 188.029 conflicts with Roe v. Wade and cases following it. Since the section's tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were in fact second-trimester abortions. While Roe, 410 U. S., at 162, recog- nized the State's interest in protecting potential human life as "important and legitimate," it also limited state involvement in second-trimester abortions to protecting maternal health, id., at 164, and allowed States to regulate or proscribe abortions to protect the unborn child only after viability, id., at 165. Since the tests in question regulate the physician's discretion in determining the viability of the fetus, § 188.029 conflicts with language in Colautti v. Franklin,439 U. S. 379, 388-389, stating that the viability determination is, and must be, a matter for the respon- sible attending physician's judgment. And, in light of District Court findings that the tests increase the expenses of abortion, their validity OCTOBER TERM, 1988 Syllabus 492 U. S. may also be questioned under Akron, 462 U. S., at 434-435, which held that a requirement that second-trimester abortions be performed in hos- pitals was invalid because it substantially increased the expenses of those procedures. Pp. 516-517. (d) The doubt cast on the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that Roe's rigid trimester analysis has proved to be unsound in principle and unworkable in practice. In such circumstances, this Court does not refrain from re- considering prior constitutional rulings, notwithstanding stare decisis. E. g., Garciav. San Antonio Metropolitan Transit Authority, 469 U. S. 528. The Roe framework is hardly consistent with the notion of a Con- stitution like ours that is cast in general terms and usually speaks in general principles. The framework's key elements -trimesters and via- bility-are not found in the Constitution's text, and, since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. There is also no reason why the State's compelling interest in protecting potential human life should not extend throughout pregnancy rather than coming into existence only at the point of viability. Thus, the Roe trimester framework should be abandoned. Pp. 517-520. (e) There is no merit to JUSTICE BLACKMUN'S contention that the Court should join in a "great issues" debate as to whether the Constitu- tion includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U. S. 479. Unlike Roe, Griswold did not purport to adopt a whole framework, complete with de- tailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. The Roe framework sought to deal with areas of medical practice traditionally left to the States, and to balance once and for all, by reference only to the calendar, the State's interest in protecting potential human life against the claims of a pregnant woman to decide whether or not to abort. The Court's experience in applying Roe in later cases suggests that there is wisdom in not necessarily at- tempting to elaborate the differences between a "fundamental right" to an abortion, Akron, supra, at 420, n. 1, a "limited fundamental con- stitutional right," post, at 555, or a liberty interest protected by the Due Process Clause. Moreover, although this decision will undoubtedly allow more governmental regulation of abortion than was permissible be- fore, the goal of constitutional adjudication is not to remove inexorably "politically devisive" issues from the ambit of the legislative process, but is, rather, to hold true the balance between that which the Constitu- tion puts beyond the reach of the democratic process and that which it does not. Furthermore, the suggestion that legislative bodies, in a Na- WEBSTER v. REPRODUCTIVE HEALTH SERVICES 490 Syllabus tion where more than half the population is female, will treat this deci- sion as an invitation to enact abortion laws reminiscent of the dark ages misreads the decision and does scant justice to those who serve in such bodies and the people who elect them. Pp. 520-521. 2. This case affords no occasion to disturb Roe's holding that a Texas statute which criminalized all nontherapeutic abortions unconstitution- ally infringed the right to an abortion derived from the Due Process Clause. Roe is distinguishable on its facts, since Missouri has deter- mined that viability is the point at which its interest in potential human life must be safeguarded. P. 521. JUSTICE O'CONNOR, agreeing that it was plain error for the Court of Appeals to interpret the second sentence of § 188.029 as meaning that doctors must perform tests to find gestational age, fetal weight, and lung maturity, concluded that the section was constitutional as properly inter- preted by the plurality, and that the plurality should therefore not have proceeded to reconsider Roe v. Wade. This Court refrains from decid- ing constitutional questions where there is no need to do so, and gener- ally does not formulate a consitutional rule broader than the precise facts to which it is to be applied. Ashwander v. TVA, 297 U. S. 288, 346, 347. Since appellees did not appeal the District Court's ruling that the first sentence of § 188.029 is constitutional, there is no dispute between the parties over the presumption of viability at 20 weeks created by that first sentence. Moreover, as properly interpreted by the plurality, the section's second sentence does nothing more than delineate means by which the unchallenged 20-week presumption may be overcome if those means are useful in determining viability and can be prudently em- ployed. As so interpreted, the viability testing requirements do not conflict with any of the Court's abortion decisions. As the plurality recognizes, under its interpretation of § 188.029's second sentence, the viability testing requirements promote the State's interest in potential life. This Court has recognized that a State may promote that interest when viability is possible. Thornburghv. American College of Obstetri- cians and Gynecologists, 476 U. S. 747, 770-771. Similarly, the basis for reliance by the lower courts on Colautti v. Franklin,439 U. S. 379, 388-389, disappears when § 188.029 is properly interpreted to require only subsidiary viability findings, since the State has not attempted to substitute its judgment for the physician's ascertainment of viability, which therefore remains "the critical point." Nor does the marginal in- crease in the cost of an abortion created by § 188.029's viability testing provision, as interpreted, conflict with Akron v. Akron Centerfor Re- productive Health, 462 U. S. 416, 434-439, since, here, such costs do not place a "heavy, and unnecessary burden" on a woman's abortion de- cision, whereas the statutory requirement in Akron, which related to OCTOBER TERM, 1988 Syllabus 492 U. S. previablity abortions, more than doubled a woman's costs. Moreover, the statutory requirement in Al-on involved second-trimester abortions generally; § 188.029 concerns only tests and examinations to determine viability when viability is possible. The State's compelling interest in potential life postviability renders its interest in determining the critical point of viability equally compelling. Thornburgh, supra, at 770-771. When the constitutional invalidity of a State's abortion statute actually turns upon the constitutional validity of Roe, there will be time enough to reexamine Roe, and to do so carefully. Pp. 525-531. JUSTICE SCALIA would reconsider and explicitly overrule Roe v. Wade. Avoiding the Roe question by deciding this case in as narrow a manner as possible is not required by precedent and not justified by pol- icy. To do so is needlessly to prolong this Court's involvement in a field where the answers to the central questions are political rather than ju- ridical, and thus to make the Court the object of the sort of organized pressure that political institutions in a democracy ought to receive. It is particularly perverse to decide this case as narrowly as possible in order to avoid reading the inexpressibly "broader-than-was-required-by-the- precise-facts" structure established by Roe v. Wade. The question of Roe's validity is presented here, inasmuch as § 188.029 constitutes a leg- islative imposition on the judgment of the physician concerning the point of viability and increases the cost of an abortion. It does palpable harm, if the States can and would eliminate largely unrestricted abortion, skill- fully to refrain from telling them so. Pp. 532-537. REHNQUIST, C. J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part II-C, the opinion of the Court with respect to Parts I, II-A, and II-B, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an opinion with re- spect to Parts II-D and III, in which WHITE and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 522, and SCALIA, J., post, p. 532, filed opinions con- curring in part and concurring in the judgment. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 537. STEVENS, J., filed an opinion con- curring in part and dissenting in part, post, p. 560. William L. Webster, Attorney General of Missouri, pro se, argued the cause for appellants. With him on the briefs were Michael L. Boicourt and Jerry L. Short, Assistant At- torneys General. Charles Fried argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting WEBSTER v. REPRODUCTIVE HEALTH SERVICES 497 490 Counsel Solicitor General Bryson, Assistant Attorney General Bol- ton, Deputy Solicitor General Merrill, Roger Clegg, Steven R. Valentine, and Michael K. Kellogg. Frank Susman argued the cause for appellees. With him on the brief were Roger K. Evans, DaraKlassel, BarbaraE. Otten, Thomas M. Blumenthal, and Janet Benshoof.* *Briefs of amici curiae urging reversal were filed for Alabama Lawyers for Unborn Children, Inc., by John J. Coleman III and Thomas E. Max- well; for the American Association of Prolife Obstetricians and Gynecolo- gists et al. by Dolores Horan and Paige Comstock Cunningham;for the American Family Association, Inc., by Peggy M. Coleman; for the Ameri- can Life League, Inc., by Marion Edwyn Harrisonand John S. Baker, Jr.; for the Catholic Health Association of the United States by J. Roger Edgar, David M. Harris,Kathleen M. Boozang, J. Stuart Showalter, and Peter E. Campbell; for the Catholic Lawyers Guild of the Archdiocese of Boston, Inc., by Calum B. Anderson and Leonard F. Zandrow, Jr.; for the Center for Judicial Studies et al. by Jules B. Gerard; for Covenant House et al. by Gregory A. Loken; for Focus On The Family et al. by H. Robert Showers; for the Holy Orthodox Church by James George Jatras;for the Knights of Columbus by Robert J. Cynkar and Brendan V. Sullivan, Jr.; for the Lutheran Church-Missouri Synod et al. by PhilipE. Draheim; for the Missouri Catholic Conference by David M. Harris, J. Roger Edgar, Bernard C. Huger, Kathleen M. Boozang, and Louis C. DeFeo, Jr.; for the National Legal Foundation by Douglas W. Davis and Robert K. Skolrood; for Right to Life Advocates, Inc., by Richard W. Schmude and Rory R. Olsen; for the Rutherford Institute et al. by James J. Knicely, John W. Whitehead, Thomas W. Strahan, David E. Morris, William B. Hollberg, Amy Dougherty, Randall A. Pentiuk, William Bon- ner, Larry L. Crain, and W. Charles Bundren; for the Southern Center for Law and Ethics by Albert L. Jordan;for the Southwest Life and Law Cen- ter, Inc., by David Burnell Smith; for the United States Catholic Confer- ence by Mark E. Chopko and Phillip H. Harris;for 127 Members of the Missouri General Assembly by Timothy Belz, Lynn D. Wardle, and Rich- ard G. Wilkins; and for James Joseph Lynch, Jr., by Mr. Lynch, pro se. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neuborne, Janet Benshoof, Rachael N. Pine, and Lynn M. Paltrow;for the American Jewish Congress et al. by MarthaL. Minow; for the American Library Association et al. by Bruce J. Ennis and Mark D. Schneider; for the American Medical Association et al. by Jack R. Bierig, Carter G. Phillips, Elizabeth H. Esty, Stephan OCTOBER TERM, 1988 Opinion of the Court 492 U. S. CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, I-B, and II-C, and an opinion with respect E. Lawton, Ann E. Allen, Laurie R. Rockett, and Joel L Klein; for the American Psychological Association by Donald N. Bersoff, for the Ameri- can Public Health Association et al. by John H. Hall and Nadine Taub; for Americans for Democratic Action et al. by Marsha S. Berzon; for Americans United for Separation of Church and State by Lee Boothby, Robert W. Nixon, and Robert J. Lipshutz; for the Association of Repro- ductive Health Professionals et al. by Colleen K. Connell and Dorothy B. Zimbrakos; for Bioethicists for Privacy by George J. Annas; for Catho- lics for a Free Choice et al. by PatriciaHennessey; for the Center for Population Options et al. by John H. Henn and Thomas Asher; for the Committee on Civil Rights of the Bar of the City of New York et al. by JonathanLang, DianeS. Wilner, Arthur S. Leonard, Audrey S. Fein- berg, and JaniceGoodman; for 22 International Women's Health Organiza- tions by Kathryn Kolbert; for the American Nurses' Association et al. by E. Calvin Golumbic; for the National Coalition Against Domestic Violence by David A. Strauss;for the National Family Planning and Reproductive Health Association by James L. Feldesman, Jeffrey K. Stith, and Thomas E. Zemaitis; for the National Association of Public Hospitals by Alan K. Parver and Phyllis E. Bernard; for Population-Environment Balance et al. by Dina R. Lassow; for 281 American Historians by Sylvia A. Law; and for 2,887 Women Who Have Had Abortions et al. by SarahE. Burns. Briefs of amici curiae were filed for the State of California et al. by Rob- ert Abrams, Attorney General of New York, 0. Peter Sherwood, Solicitor General, and Suzanne M. Lynn and Marla Tepper, Assistant Attorneys General, James M. Shannon, Attorney General of Massachusetts, and Su- zanne E. Durrell and Madelyn F. Wessel, Assistant Attorneys General, Elizabeth Holtzman, pro se, Barbara D. Underwood, John K. Van de Kamp, Attorney General of California, Duane Woodard, Attorney Gen- eral of Colorado, Jim Mattox, Attorney General of Texas, and Jeffrey L. Amestoy, Attorney General of Vermont; for the State of Louisiana et al. by William J. Guste, Jr., Attorney General of Louisiana, Jo Ann P. Levert, Assistant Attorney General, and Thomas A. Rayer, Robert K. Corbin, Attorney General of Arizona, Jim Jones, Attorney General of Idaho, and Ernest D. Preate,Jr., Attorney General of Pennsylvania; for Agudath Israel of America by Steven D. Prager;for the American Academy of Medical Eth- ics by JamesBopp, Jr.; for the California National Organization for Women et al. by Kathryn A. Sure; for American Collegians for Life, Inc., et al. by Robert A. Destro;for the Canadian Abortion Rights Action League et al. by WEBSTER v. REPRODUCTIVE HEALTH SERVICES 499 490 Opinion of the Court to Parts II-D and III, in which JUSTICE WHITE and JUSTICE KENNEDY join. This appeal concerns the constitutionality of a Missouri statute regulating the performance of abortions. The United States Court of Appeals for the Eighth Circuit struck down several provisions of the statute on the ground that they vio- lated this Court's decision in Roe v. Wade, 410 U. S. 113 (1973), and cases following it. We noted probable jurisdic- tion, 488 U. S. 1003 (1989), and now reverse. Estelle Rogers; for the Association for Public Justice et al. by Joseph W. Dellapenna; for Birthright, Inc., by Joseph I. McCullough, Jr.; for Catholics United for Life et al. by Walter M. Weber, Michael J. Woodruff, Charles E. Rice, and Michael J. Laird; for Christian Advocates Serving Evangelism by Theodore H. Amshoff, Jr.; for Doctors for Life et al. by Andrew F. Puzder and Kenneth C. Jones; for Feminists For Life of Amer- ica et al. by ChristineSmith Torre; for Free Speech Advocates by Thomas Patrick Monaghan; for Human Life International by Robert L. Sassone; for the International Right to Life Federation by John J. Potts; for the National Association of Women Lawyers et al. by Nicholas DeB. Katzen- bach, Leona Beane, and Estelle H. Rogers; for the National Council of Negro Women, Inc., et al. by Rhonda Copelon; for the National Organiza- tion for Women by John S. L. Katz; for the National Right to Life Commit- tee, Inc., by James Bopp, Jr.; for the New England Christian Action Council, Inc., by Philip D. Moran; for the Right to Life League of South- ern California, Inc., by Robert L. Sassone; for 77 Organizations Committed to Women's Equality by Judith L. Lichtman, Donna R. Lenhoff, Marcia Greenberger,Stephanie Ridder, and Wendy Webster Williams; for Certain Members of the Congress of the United States by Burke Marshall and Norman Redlich; for Congressman Christopher H. Smith et al. by Albert P. Blaustein, Edward R. Grant, and Ann-Louise Lohr; for 608 State Leg- islators by Herma Hill Kay, James J. Brosnahan, and Jack W. Londen; for Certain Members of the General Assembly of the Commonwealth of Pennsylvania by William Bentley Ball, Philip J. Murren, and Maura K. Quinlan; for Certain American State Legislators by Paul Benjamin Linton and Clarke D. Forsythe; for A Group of American Law Professors by Norman Redlich; for 167 Distinguished Scientists and Physicians by Jay Kelly Wright; for Edward Allen by Robert L. Sassone; for Larry Joyce by Thomas P. Joyce; for Paul Marx by Robert L. Sassone; for Bernard N. Nathanson by Mr. Sassone; and for Austin Vaughn et al. by Mr. Sassone. OCTOBER TERM, 1988 Opinion of the Court 492 U. S. In June 1986, the Governor of Missouri signed into law Missouri Senate Committee Substitute for House Bill No. 1596 (hereinafter Act or statute), which amended ex- isting state law concerning unborn children and abortions.' I After Roe v. Wade, the State of Missouri's then-existing abortion reg- ulations, see Mo. Rev. Stat. § 559.100, 542.380, and 563.300 (1969), were declared unconstitutional by a three-judge federal court. This Court sum- marily affirmed that judgment. Danforlh v. Rodgers, 414 U. S. 1035 (1973). Those statutes, like the Texas statute at issue in Roe, made it a crime to perform an abortion except when the mother's life was at stake. 410 U. S., at 117-118, and n. 2. In June 1974, the State enacted House Committee Substitute for House Bill No. 1211, which imposed new regulations on abortions during all stages of pregnancy. Among other things, the 1974 Act defined "viabil- ity," § 2(2); required the written consent of the woman prior to an abortion during the first 12 weeks of pregnancy, § 3(2); required the written consent of the woman's spouse prior to an elective abortion during the first 12 weeks of pregnancy, § 3(3); required the written consent of one parent if the woman was under 18 and unmarried prior to an elective abortion dur- ing the first 12 weeks of pregnancy, § 3(4); required a physician performing an abortion to exercise professional care to "preserve the life and health of the fetus" regardless of the stage of pregnancy and, if he should fail that duty, deemed him guilty of manslaughter and made him liable for damages, § 6(1); prohibited the use of saline amniocentesis, as a method of abortion, after the first 12 weeks of pregnancy, § 9; and required certain record- keeping for health facilities and physicians performing abortions, §§ 10, 11. In Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976), the Court upheld the definition of viability, id., at 63-65, the consent provi- sion in § 3(2), id., at 65-67, and the recordkeeping requirements. Id., at 79-81. It struck down the spousal consent provision, id., at 67-72, the pa- rental consent provision, id., at 72-75, the prohibition on abortions by am- niocentesis, id., at 75-79, and the requirement that physicians exercise professional care to preserve the life of the fetus regardless of the stage of pregnancy. Id., at 81-84. In 1979, Missouri passed legislation that, inter alia, required abortions after 12 weeks to be performed in a hospital, Mo. Rev. Stat. § 188.025 (Supp. 1979); required a pathology report for each abortion performed, § 188.047; required the presence of a second physician during abortions performed after viability, § 188.030.3; and required minors to secure paren- WEBSTER v. REPRODUCTIVE HEALTH SERVICES 501 490 Opinion of the Court The Act consisted of 20 provisions, 5 of which are now before the Court. The first provision, or preamble, contains "find- ings" by the state legislature that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and well-being." Mo. Rev. Stat. §§ 1.205.1(1), (2) (1986). The Act further requires that all Missouri laws be interpreted to provide unborn chil- dren with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents. § 1.205.2. Among its other provisions, 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 per- forming "such medical examinations and tests as are neces- sary to make a finding of the gestational age, weight, and lung maturity of the unborn child." § 188.029. 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 it prohibits the use of public funds, employees, or fa- cilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life. §§ 188.205, 188.210, 188.215. 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 to challenge the constitutionality of the Missouri statute. Plaintiffs, appellees in this Court, sought declara- tory and injunctive relief on the ground that certain statutory provisions violated the First, Fourth, Ninth, and Fourteenth Amendments to the Federal Constitution. App. A9. They asserted violations of various rights, including the "privacy tal consent or consent fiom the juvenile court for an abortion, § 188.028. In Planned ParentiwodAssn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983), the Court struck down the second-trimester hospital- ization requirement, id., at 481-482, but upheld the other provisions de- scribed above. Id., at 494. OCTOBER TERM, 1988 Opinion of the Court 492 U. S. rights of pregnant women seeking abortions"; the "woman's right to an abortion"; the "righ[t] to privacy in the physician- patient relationship"; the physician's "righ[t] to practice medicine"; the pregnant woman's "right to life due to in- herent risks involved in childbirth"; and the woman's right to "receive... adequate medical advice and treatment" con- cerning abortions. Id., at A17-A19. Plaintiffs filed this suit "on their own behalf and on behalf of the entire class consisting of facilities and Missouri licensed physicians or other health care professionals offering abor- tion services or pregnancy counseling and on behalf of the entire class of pregnant females seeking abortion services or pregnancy counseling within the State of Missouri." Id., at A13. The two nonprofit corporations are Reproductive Health Services, which offers family planning and gyneco- logical services to the public, including abortion services up to 22 weeks "gestational age," 2 and Planned Parenthood of Kansas City, which provides abortion services up to 14 weeks gestational age. Id., at A9-A1O. The individual plaintiffs are three physicians, one nurse, and a social worker. All are "public employees" at "public facilities" in Missouri, and they are paid for their services with "public funds," as those terms are defined by § 188.200. The individual plaintiffs, within the scope of their public employment, encourage and counsel pregnant women to have nontherapeutic abortions. Two of the physicians perform abortions. App. A54-A55. Several weeks after the complaint was filed, the District Court temporarily restrained enforcement of several provi- sions of the Act. Following a 3-day trial in December 1986, the District Court declared seven provisions of the Act un- constitutional and enjoined their enforcement. 662 F. Supp. 407 (WD Mo. 1987). These provisions included the pream- ble, § 1.205; the "informed consent" provision, which re- 'The Act defines "gestational age" as the "length of pregnancy as meas- ured from the first day of the woman's last menstrual period." Mo. Rev. Stat. § 188.015(4) (1986). WEBSTER v. REPRODUCTIVE HEALTH SERVICES 503 490 Opinion of the Court quired physicians to inform the pregnant woman of certain facts before performing an abortion, § 188.039; the require- ment that post-16-week abortions be performed only in hos- pitals, § 188.025; the mandated tests to determine viability, § 188.029; and the prohibition on the use of public funds, em- ployees, and facilities to perform or assist nontherapeutic abortions, and the restrictions on the use of public funds, em- ployees, and facilities to encourage or counsel women to have such abortions, §§ 188.205, 188.210, 188.215. Id., at 430. The Court of Appeals for the Eighth Circuit affirmed, with one exception not relevant to this appeal. 851 F. 2d 1071 (1988). The Court of Appeals determined that Missouri's declaration that life begins at conception was "simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations." Id., at 1076. Relying on Colautti v. Franklin, 439 U. S. 379, 388-389 (1979), it further held that the requirement that physicians perform viability tests was an unconstitutional legislative intrusion on a matter of medical skill and judgment. 851 F. 2d, at 1074-1075. The Court of Appeals invalidated Missouri's pro- hibition on the use of public facilities and employees to per- form or assist abortions not necessary to save the mother's life. Id., at 1081-1083. 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 "'[t]here is a funda- mental difference between providing direct funding to effect the abortion decision and allowing staff physicians to perform abortions at an existing publicly owned hospital.'" 851 F. 2d, at 1081, quoting Nyberg v. City of Virginia, 667 F. 2d 754, 758 (CA8 1982), appeal dism'd, 462 U. S. 1125 (1983). 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. 851 F. 2d, at 1077-1080. The court also invalidated the hospitaliza- OCTOBER TERM, 1988 Opinion of the Court 492 U. S. tion requirement for 16-week abortions, id., at 1073-1074, and the prohibition on the use of public employees and facili- ties for abortion counseling, id., at 1077-1080, but the State has not appealed those parts of the judgment below. See 3 Juris. Statement I-11. II Decision of this case requires us to address four sections of the Missouri Act: (a) the preamble; (b) the prohibition on the use of public facilities or employees to perform abortions; (c) the prohibition on public funding of abortion counseling; and (d) the requirement that physicians conduct viability tests prior to performing abortions. We address these seriatim. A The Act's preamble, as noted, sets forth "findings" by the Missouri Legislature that "[t]he life of each human being be- gins at conception," and that "[u]nborn children have pro- tectable interests in life, health, and well-being." Mo. Rev. Stat. §§ 1.205.1(1), (2) (1986). The Act then mandates that state laws be interpreted to provide unborn children with "all the rights, privileges, and immunities available to other per- sons, citizens, and residents of this state," subject to the Constitution and this Court's precedents. § 1.205.2. 4 In in- 'The State did not appeal the District Court's invalidation of the Act's "informed consent" provision to the Court of Appeals, 851 F. 2d, at 1073, n. 2, and it is not before us. ISection 1.205 provides in full: "1. The general assembly of this state finds that: "(1) The life of each human being begins at conception; "(2) Unborn children have protectable interests in life, health, and well- being; "(3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child. "2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitu- tion of the United States, and decisional interpretations thereof by the WEBSTER v. REPRODUCTIVE HEALTH SERVICES 505 490 Opinion of the Court validating the preamble, the Court of Appeals relied on this Court's dictum that "'a State may not adopt one theory of when life begins to justify its regulation of abortions."' 851 F. 2d, at 1075-1076, quoting Akron v. Akron Centerfor Re- productive Health, Inc., 462 U. S. 416, 444 (1983), in turn citing Roe v. Wade, 410 U. S., at 159-162. It rejected Mis- souri's claim that the preamble was "abortion-neutral," and "merely determine[d] when life begins in a nonabortion con- text, a traditional state prerogative." 851 F. 2d, at 1076. The court thought that "[t]he only plausible inference" from the fact that "every remaining section of the bill save one reg- ulates the performance of abortions" was that "the state in- tended its abortion regulations to be understood against the backdrop of its theory of life." Ibid.' The State contends that the preamble itself is precatory and imposes no substantive restrictions on abortions, and that appellees therefore do not have standing to challenge it. Brief for Appellants 21-24. Appellees, on the other hand, insist that the preamble is an operative part of the Act in- tended to guide the interpretation of other provisions of the Act. Brief for Appellees 19-23. They maintain, for exam- ple, that the preamble's definition of life may prevent physi- United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state. "3.As used in this section, the term 'unborn children' or 'unborn child' shall include all unborn child [sic] or children or the offspring of human beings from the moment of conception until birth at every stage of biologi- cal development. "4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care." 5 Judge Arnold dissented from this part of the Court of Appeals' deci- sion, arguing that Missouri's declaration of when life begins should be upheld "insofar as it relates to subjects other than abortion," such as "cre- ating causes of action against persons other than the mother" for wrongful death or extending the protection of the criminal law to fetuses. 851 F. 2d, at 1085 (opinion concurring in part and dissenting in part). OCTOBER TERM, 1988 Opinion of the Court 492 U. S. cians in public hospitals from dispensing certain forms of con- traceptives, such as the intrauterine device. Id., at 22. In our view, the Court of Appeals misconceived the mean- ing of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not by its terms regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U. S., at 474. The preamble can be read simply to express that sort of value judgment. We think the extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the courts of Missouri can definitively decide. State law has offered protections to unborn children in tort and probate law, see Roe v. Wade, supra, at 161-162, and § 1.205.2 can be interpreted to do no more than that. What we have, then, is much the same situation that the Court confronted in Alabama State Federation of Labor v. McAdory, 325 U. S.450 (1945). As in that case: "We are thus invited to pass upon the constitutional validity of a state statute which has not yet been applied or threatened to be applied by the state courts to peti- tioners or others in the manner anticipated. Lacking any authoritative construction of the statute by the state courts, without which no constitutional question arises, and lacking the authority to give such a controlling con- struction ourselves, and with a record which presents no concrete set of facts to which the statute is to be applied, the case is plainly not one to be disposed of by the declaratory judgment procedure." Id., at 460. It will be time enough for federal courts to address the mean- ing of the preamble should it be applied to restrict the ac- tivities of appellees in some concrete way. Until then, this WEBSTER v. REPRODUCTIVE HEALTH SERVICES 507 490 Opinion of the Court Court "is not empowered to decide... abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it." Tyler v. Judges of Court of Reg- istration, 179 U. S. 405, 409 (1900). See also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 473 (1982).6 We there- fore need not pass on the constitutionality of the Act's preamble. B Section 188.210 provides that "[iut shall be unlawful for any public employee within the scope of his employment to per- form or assist an abortion, not necessary to save the life of the mother," while § 188.215 makes it "unlawful for any pub- lic facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother." 7 The Court of Appeals held that these provisions contravened this Court's abortion decisions. 851 F. 2d, at 1082-1083. We take the contrary view. As we said earlier this Term in DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 196 (1989): "[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." In Maher v. Roe, supra, the Court upheld a Connecticut welfare regulation under which Med- icaid recipients received payments for medical services re- 'Appellees also claim that the legislature's preamble violates the Mis- souri Constitution. Brief for Appellees 23-26. But the considerations discussed in the text make it equally inappropriate for a federal court to pass upon this claim before the state courts have interpreted the statute. 'The statute defines "public employee" to mean "any person employed by this state or any agency or political subdivision thereof." Mo. Rev. Stat. § 188.200(1) (1986). "Public facility" is defined as "any public institu- tion, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivisions thereof." § 188.200(2). OCTOBER TERM, 1988 Opinion of the Court 492 U. S. lated to childbirth, but not for nontherapeutic abortions. The Court rejected the claim that this unequal subsidization of childbirth and abortion was impermissible under Roe v. Wade. As the Court put it: "The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortion decisions. The Connecticut regulation places no obsta- cles-absolute or otherwise-in the pregnant woman's path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made child- birth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult -and in some cases, perhaps, impossible-for some women to have abortions is neither created nor in any way affected by the Con- necticut regulation." 432 U. S., at 474. Relying on Maher, the Court in Poelker v. Doe, 432 U. S. 519, 521 (1977), held that the city of St. Louis committed "no constitutional violation... in electing, as a policy choice, to provide publicly financed hospital services for childbirth without providing corresponding services for nontherapeutic abortions." More recently, in Harris v. McRae, 448 U. S. 297 (1980), the Court upheld "the most restrictive version of the Hyde Amendment," id., at 325, n. 27, which withheld from States federal funds under the Medicaid program to reimburse the costs of abortions, "'except where the life of the mother would be endangered if the fetus were carried to term."' Ibid. (quoting Pub. L. 94-439, § 209, 90 Stat. 1434). As in Maher and Poelker, the Court required only a showing that Congress' authorization of "reimbursement for medically nec- essary services generally, but not for certain medically neces- WEBSTER v. REPRODUCTIVE HEALTH SERVICES 509 490 Opinion of the Court sary abortions" was rationally related to the legitimate gov- ernmental goal of encouraging childbirth. 448 U. S., at 325. The Court of Appeals distinguished these cases on the ground that "[tlo prevent access to a public facility does more than demonstrate a political choice in favor of childbirth; it clearly narrows and in some cases forecloses the availability of abortion to women." 851 F. 2d, at 1081. The court rea- soned that the ban on the use of public facilities "could prevent a woman's chosen doctor from performing an abor- tion because of his unprivileged status at other hospitals or because a private hospital adopted a similar anti-abortion stance." Ibid. It also thought that "[s]uch a rule could in- crease the cost of obtaining an abortion and delay the timing of it as well." Ibid. We think that this analysis is much like that which we rejected in Maher, Poelker, and McRae. As in those cases, the State's decision here 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." McRae, 448 U. S., at 315. Just as Congress' refusal to fund abortions in McRae left "an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all," id., at 317, Missouri's refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all. The challenged provi- sions only restrict a woman's ability to obtain an abortion to the extent that she chooses to use a physician affiliated with a public hospital. This circumstance is more easily remedied, and thus considerably less burdensome, than indigency, which "may make it difficult-and in some cases, perhaps, impossible-for some women to have abortions" without pub- lic funding. Maher, 432 U. S., at 474. Having held that the State's refusal to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use OCTOBER TERM, 1988 Opinion of the Court 492 U. S. of public facilities and employees. If the State may "make a value judgment favoring childbirth over abortion and... implement that judgment by the allocation of public funds," Maher, supra, at 474, surely it may do so through the alloca- tion of other public resources, such as hospitals and medical staff. The Court of Appeals sought to distinguish our cases on the additional ground that "[t]he evidence here showed that all of the public facility's costs in providing abortion services are recouped when the patient pays." 851 F. 2d, at 1083. Absent any expenditure of public funds, the court thought that Missouri was "expressing" more than "its preference for childbirth over abortions," but rather was creating an "ob- stacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest." Ibid. We disagree. "Constitutional concerns are greatest," we said in Maher, supra, at 476, "when the State attempts to impose its will by the force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader." Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions. Brief for Appellees 46-47. Indeed, if the State does recoup all of its costs in performing abortions, and no state subsidy, direct or indirect, is avail- able, it is difficult to see how any procreational choice is bur- dened by the State's ban on the use of its facilities or employ- ees for performing abortions. 8 8 A different analysis might apply if a particular State had socialized medicine and all of its hospitals and physicians were publicly funded. This case might also be different if the State barred doctors who performed abortions in private facilities from the use of public facilities for any purpose. See Harrisv. McRae, 448 U. S. 297, 317, n. 19 (1980). WEBSTER v. REPRODUCTIVE HEALTH SERVICES 511 490 Opinion of the Court Maher, Poelker, and McRae all support the view that the State need not commit any resources to facilitating abortions, even if it can turn a profit by doing so. In Poelker, the suit was filed by an indigent who could not afford to pay for an abortion, but the ban on the performance of nontherapeutic abortions in city-owned hospitals applied whether or not the pregnant woman could pay. 432 U. S., at 520; id., at 524 (BRENNAN, J., dissenting).9 The Court emphasized that the mayor's decision to prohibit abortions in city hospitals was "subject to public debate and approval or disapproval at the polls," and 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." Id., at 521. Thus we uphold the Act's restrictions on the use of public employees and facilities for the performance or assist- ance of nontherapeutic abortions. C The Missouri Act contains three provisions relating to "en- couraging or counseling a woman to have an abortion not nec- essary to save her life." Section 188.205 states that no pub- lic funds can be used for this purpose; § 188.210 states that public employees cannot, within the scope of their employ- ment, engage in such speech; and § 188.215 forbids such speech in public facilities. The Court of Appeals did not con- sider § 188.205 separately from §§ 188.210 and 188.215. It held that all three of these provisions were unconstitutionally vague, and that "the ban on using public funds, employees, and facilities to encourage or counsel a woman to have an abortion is an unacceptable infringement of the woman's four- teenth amendment right to choose an abortion after receiving 'The suit in Poelker was brought by the plaintiff "on her own behalf and on behalf of the entire class of pregnant women residents of the City of St. Louis, Missouri, desiring to utilize the personnel, facilities and services of the general public hospitals within the City of St. Louis for the termina- tion of pregnancies." Doe v. Poelker, 497 F. 2d 1063, 1065 (CA8 1974). OCTOBER TERM, 1988 Opinion of the Court 492 U. S. the medical information necessary to exercise the right know- ingly and intelligently." 851 F. 2d, at 1079.0 Missouri has chosen only to appeal the Court of Appeals' invalidation of the public funding provision, § 188.205. See Juris. Statement I-iI. A threshold question is whether this provision reaches primary conduct, or whether it is simply an instruction to the State's fiscal officers not to allocate funds for abortion counseling. We accept, for purposes of decision, the State's claim that § 188.205 "is not directed at the conduct of any physician or health care provider, private or public," but "is directed solely at those persons responsible for ex- pending public funds." Brief for Appellants 43.11 Appellees contend that they are not "adversely" affected under the State's interpretation of § 188.205, and therefore that there is no longer a case or controversy before us on this question. Brief for Appellees 31-32. Plaintiffs are masters of their complaints and remain so at the appellate stage of a litigation. See CaterpillarInc. v. Williams, 482 U. S.386, 398-399 (1987). A majority of the Court agrees with appel- lees that the controversy over § 188.205 is now moot, because appellees' argument amounts to a decision to no longer seek a declaratory judgment that § 188.205 is unconstitutional and accompanying declarative relief. See Deakins v. Monaghan, 484 U. S.193, 199-201 (1988); United States v. Munsingwear, Inc., 340 U. S. 36, 39-40 (1950). We accordingly direct the Court of Appeals to vacate the judgment of the District Court 1 1Ina separate opinion, Judge Arnold argued that Missouri's prohibition violated the First Amendment because it "sharply discriminate[s] between kinds of speech on the basis of their viewpoint: a physician, for example, could discourage an abortion, or counsel against it, while in a public facility, but he or she could not encourage or counsel in favor of it." 851 F. 2d, at 1085. 1 While the Court of Appeals did not address this issue, the District Court thought that the definition of "public funds" in Mo. Rev. Stat. § 188.200 (1986) "certainly is broad enough to make 'encouraging or coun- seling' unlawful for anyone who is paid from" public funds as defined in § 188.200. 662 F. Supp. 407, 426 (WD Mo. 1987). WEBSTER v. REPRODUCTIVE HEALTH SERVICES 490 Opinion of REHNQUIST, C. J. with instructions to dismiss the relevant part of the com- plaint. Deakins, 484 U. S., at 200. "Because this [dispute] was rendered moot in part by [appellees'] willingness perma- nently to withdraw their equitable claims from their federal action, a dismissal with prejudice is indicated." Ibid. D Section 188.029 of the Missouri Act provides: "Before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this deter- mination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gesta- tional age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viabil- ity in the medical record of the mother." 2 As with the preamble, the parties disagree over the meaning of this statutory provision. The State emphasizes the lan- guage of the first sentence, which speaks in terms of the phy- sician's determination of viability being made by the stand- ards of ordinary skill in the medical profession. Brief for Appellants 32-35. Appellees stress the language of the sec- ond sentence, which prescribes such "tests as are necessary" to make a finding of gestational age, fetal weight, and lung maturity. Brief for Appellees 26-30. 2The Act's penalty provision provides that "[a]ny person who contrary to the provisions of sections 188.010 to 188.085 knowingly performs... any abortion or knowingly fails to perform any action required by [these] sections... shall be guilty of a class A misdemeanor." Mo. Rev. Stat. § 188.075 (1986). OCTOBER TERM, 1988 Opinion of REHNQUIST, C. J. 492 U. S. The Court of Appeals read § 188.029 as requiring that after 20 weeks "doctors must perform tests to find gestational age, fetal weight and lung maturity." 851 F. 2d, at 1075, n. 5. The court indicated that the tests needed to determine fetal weight at 20 weeks are "unreliable and inaccurate" and would add $125 to $250 to the cost of an abortion. Ibid. It also stated that "amniocentesis, the only method available to de- termine lung maturity, is contrary to accepted medical prac- tice until 28-30 weeks of gestation, expensive, and imposes significant health risks for both the pregnant woman and the fetus." Ibid. We must first determine the meaning of § 188.029 under Missouri law. Our usual practice is to defer to the lower court's construction of a state statute, but we believe the Court of Appeals has "fallen into plain error" in this case. Frisby v. Schultz, 487 U. S. 474, 483 (1988); see Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 500, n. 9 (1985). "'In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy."' Philbrookv. Glodgett, 421 U. S. 707, 713 (1975), quoting United States v. Heirs of Boisdori,8 How. 113, 122 (1849). See Chemehuevi Tribe of Indians v. FPC, 420 U. S. 395, 402-403 (1975); Kokoszka v. Belford, 417 U. S. 642, 650 (1974). The Court of Appeals' interpretation also runs "afoul of the well- established principle that statutes will be interpreted to avoid constitutional difficulties." Frisby, supra, at 483. We think the viability-testing provision makes sense only if the second sentence is read to require only those tests that are useful to making subsidiary findings as to viability. If we construe this provision to require a physician to perform those tests needed to make the three specified findings in all circumstances, including when the physician's reasonable professional judgment indicates that the tests would be ir- relevant to determining viability or even dangerous to the mother and the fetus, the second sentence of § 188.029 would WEBSTER v. REPRODUCTIVE HEALTH SERVICES 515 490 Opinion of REHNQUIST, C. J. conflict with the first sentence's requirement that a physician apply his reasonable professional skill and judgment. It would also be incongruous to read this provision, especially the word "necessary,"" to require the performance of tests irrelevant to the expressed statutory purpose of determining viability. It thus seems clear to us that the Court of Ap- peals' construction of § 188.029 violates well-accepted canons of statutory interpretation used in the Missouri courts, see State ex rel. Stern Brothers & Co. v. Stiltey, 337 S. W. 2d 934, 939 (Mo. 1960) ("The basic rule of statutory construction is to first seek the legislative intention, and to effectuate it if possible, and the law favors constructions which harmonize with reason, and which tend to avoid unjust, absurd, unrea- sonable or confiscatory results, or oppression"); Bell v. Mid- Century Ins. Co., 750 S. W. 2d 708, 710 (Mo. App. 1988) ("Interpreting the phrase literally would produce an absurd result, which the Legislature is strongly presumed not to have intended"), which JUSTICE BLACKMUN ignores. Post, at 545-546. The viability-testing provision of the Missouri Act is concerned with promoting the State's interest in potential human life rather than in maternal health. Section 188.029 creates what is essentially a presumption of viability at 20 weeks, which the physician must rebut with tests indicating that the fetus is not viable prior to performing an abortion. It also directs the physician's determination as to viability by specifying consideration, if feasible, of gestational age, fetal weight, and lung capacity. The District Court found that "the medical evidence is uncontradicted that a 20-week fetus is not viable," and that "23Y to 24 weeks gestation is the earli- est point in pregnancy where a reasonable possibility of via- "See Black's Law Dictionary 928 (5th ed. 1979) ("Necessary. This word must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought"). OCTOBER TERM, 1988 Opinion of REHNQUIST, C. J. 492 U. S. bility exists." 662 F. Supp., at 420. But it also found that there may be a 4-week error in estimating gestational age, id., at 421, which supports testing at 20 weeks. In Roe v. Wade, the Court recognized that the State has "important and legitimate" interests in protecting maternal health and in the potentiality of human life. 410 U. S., at 162. During the second trimester, the State "may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Id., at 164. After viability, when the State's interest in potential human life was held to become compelling, the State "may, if it chooses, regulate, and even proscribe, abortion except where it is nec- essary, in appropriate medical judgment, for the preserva- tion of the life or health of the mother." Id., at 165. 14 In Colautti v. Franklin, 439 U. S. 379 (1979), upon which appellees rely, the Court held that a Pennsylvania statute regulating the standard of care to be used by a physician per- forming an abortion of a possibly viable fetus was void for vagueness. Id., at 390-401. But in the course of reaching that conclusion, the Court reaffirmed its earlier statement in Planned Parenthoodof Central Mo. v. Danforth, 428 U. S. 52, 64 (1976), that "'the determination of whether a particu- 11The Court's subsequent cases have reflected this understanding. See Colautti v. Franklin, 439 U. S. 379, 386 (1979) (emphasis added) ("For both logical and biological reasons, we indicated in [Roe] that the State's interest in the potential life of the fetus reaches the compelling point at the stage of viability. Hence, prior to viability, the State may not seek to fitrther this interest by directly restrictinga woman's decision whether or not to terninate herpregnancy'); id., at 389 ("Viability is the critical point. And we have recognized no attempt to stretch the point of viability one way or the other"); accord, Planned Parenthoodof Central Mo. v. Dan- forth, 428 U. S., at 61 (State regulation designed to protect potential human life limited to period "subsequent to viability"); Akron v. Akron Centerfor Reproductive Health, Inc., 462 U. S. 416, 428 (1983), quoting Roe v. Wade, 410 U. S., at 163 (emphasis added) (State's interest in pro- tecting potential human life "becomes compelling only at viability, the point at which the fetus 'has the capability of meaningful life outside the mother's womb"'). WEBSTER v. REPRODUCTIVE HEALTH SERVICES 517 490 Opinion of REHNQUIST, C. J. lar fetus is viable is, and must be, a matter for the judgment of the responsible attending physician."' 439 U. S., at 396. JUSTICE BLACKMUN, post, at 545, n. 6, ignores the statement in Colautti that "neither the legislature nor the courts may proclaim one of the elements entering into the ascertain- ment of viability-be it weeks of gestation or fetal weight or any other single factor-as the determinant of when the State has a compelling interest in the life or health of the fetus." 439 U. S., at 388-389. To the extent that § 188.029 regulates the method for determining viability, it undoubt- edly does superimpose state regulation on the medical deter- mination whether a particular fetus is viable. The Court of Appeals and the District Court thought it unconstitutional for this reason. 851 F. 2d, at 1074-1075; 662 F. Supp., at 423. To the extent that the viability tests increase the cost of what are in fact second-trimester abortions, their validity may also be questioned under Akron, 462 U. S., at 434-435, where the Court held that a requirement that second-trimester abor- tions must be performed in hospitals was invalid because it substantially increased the expense of those procedures. We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in sub- sequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specify- ing elements of informed consent to be provided abortion pa- tients, for example, were invalidated if they were thought to "structur[e]... the dialogue between the woman and her physician." Thornburgh v. American College of Obstetri- cians and Gynecologists, 476 U. S.747, 763 (1986). As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judi- cial review, id., at 802 (WHITE, J., dissenting), or for any other surgical procedure except abortion. Id., at 783 (Bur- ger, C. J., dissenting). OCTOBER TERM, 1988 Opinion of REHNQUIST, C. J. 492 U. S. Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitu- tional amendments, this Court is the only body able to make needed changes. See United States v. Scott, 437 U. S. 82, 101 (1978). We have not refrained from reconsideration of a prior construction of the Constitution that has proved "un- sound in principle and unworkable in practice." Garcia v. San Antonio Metropolitan TransitAuthority, 469 U. S. 528, 546 (1985); see Solorio v. United States, 483 U. S. 435, 448-450 (1987); Erie R. Co. v. Tompkins, 304 U. S. 64, 74-78 (1938). We think the Roe trimester framework falls into that category. In the first place, the rigid Roe framework is hardly con- sistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework-tri- mesters and viability-are not found in the text of the Con- stitution or in any place else one would expect to find a con- stitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doc- trine. 15 As JUSTICE WHITE has put it, the trimester frame- 11For example, the Court has held that a State may require that certain information be given to a woman by a physician or his assistant, Akron v. Akron CenterforReproductive Health, Inc., 462 U. S., at 448, but that it may not require that such information be furnished to her only by the phy- sician himself. Id., at 449. Likewise, a State may require that abortions in the second trimester be performed in clinics, Simopoulos v. Virginia, 462 U. S. 506 (1983), but it may not require that such abortions be per- formed only in hospitals. Akron, supra, at 437-439. We do not think these distinctions are of any constitutional import in view of our abandon- ment of the trimester framework. JUSTICE BLACKMUN'S claim, post, at 539-541, n. 1, that the State goes too far, even under Maher v. Roe, 432 U. S. 464 (1977); Poelker v. Doe, 432 U. S. 519 (1977); and Harris v. McRae, 448 U. S. 297 (1980), by refusing to permit the use of public facili- ties, as defined in Mo. Rev. Stat. § 188.200 (1986), for the performance of abortions is another example of the fine distinctions endemic in the Roe fiamework. WEBSTER v. REPRODUCTIVE HEALTH SERVICES 519 490 Opinion of REHNQUIST, C. J. work has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States." Planned Parenthoodof Central Mo. v. Danforth, 428 U. S., at 99 (opinion concurring in part and dissenting in part). Cf. Garcia, supra, at 547. In the second place, we do not see why the State's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. The dissenters in Thorn- burgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the "fun- damental right" recognized in Roe the State's "compelling in- terest" in protecting potential human life throughout preg- nancy. "[Tihe State's interest, if compelling after viability, is equally compelling before viability." Thornburgh, 476 U. S., at 795 (WHITE, J., dissenting); see id., at 828 (O'CON- NOR, J., dissenting) ("State has compelling interests in ensur- ing maternal health and in protecting potential human life, and these interests exist 'throughout pregnancy'") (citation omitted). The tests that § 188.029 requires the physician to perform are designed to determine viability. The State here has chosen viability as the point at which its interest in poten- tial human life must be safeguarded. See Mo. Rev. Stat. § 188.030 (1986) ("No abortion of a viable unborn child shall be performed unless necessary to preserve the life or health of the woman"). It is true that the tests in question increase the expense of abortion, and regulate the discretion of the physician in determining the viability of the fetus. Since the tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were in fact second-trimester abortions. But we are satis- fied that the requirement of these tests permissibly furthers OCTOBER TERM, 1988 Opinion of REHNQUIST, C. J. 492 U. S. the State's interest in protecting potential human life, and we therefore believe § 188.029 to be constitutional. JUSTICE BLACKMUN takes us to task for our failure to join in a "great issues" debate as to whether the Constitution in- cludes an "unenumerated" general right to privacy as recog- nized in cases such as Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe. But Griswold v. Connecticut, unlike Roe, did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. As such, it was far different from the opinion, if not the holding, of Roe v. Wade, which sought to establish a constitutional framework for judging state regulation of abortion during the entire term of pregnancy. That framework sought to deal with areas of medical practice traditionally subject to state regula- tion, and it sought to balance once and for all by reference only to the calendar the claims of the State to protect the fetus as a form of human life against the claims of a woman to decide for herself whether or not to abort a fetus she was car- rying. The experience of the Court in applying Roe v. Wade in later cases, see supra, at 518, n. 15, suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a "fundamental right" to abortion, as the Court described it in Akron, 462 U. S. at 420, n. 1, a "limited fundamental constitutional right," which JUSTICE BLACKMUN today treats Roe as having established, post, at 555, or a liberty interest protected by the Due Proc- ess Clause, which we believe it to be. The Missouri testing requirement here is reasonably designed to ensure that abor- tions are not performed where the fetus is viable-an end which all cdncede is legitimate-and that is sufficient to sus- tain its constitutionality. JUSTICE BLACKMUN also accuses us, inter alia, of coward- ice and illegitimacy in dealing with "the most politically divi- sive domestic legal issue of our time." Post, at 559. There is WEBSTER v. REPRODUCTIVE HEALTH SERVICES 521 490 Opinion of REHNQUIST, C. J. no doubt that our holding today will allow some governmental regulation of abortion that would have been prohibited under the language of cases such as Colauttiv. Franklin,439 U. S. 379 (1979), and Akron v. Akron Center for Reproductive Health, Inc., supra. But the goal of constitutional adjudica- tion is surely not to remove inexorably "politically divisive" issues from the ambit of the legislative process, whereby the people through their elected representatives deal with mat- ters of concern to them. The goal of constitutional adjudica- tion is to hold true the balance between that which the Con- stitution puts beyond the reach of the democratic process and that which it does not. We think we have done that today. JUSTICE BLACKMUN'S suggestion, post, at 538, 557-558, that legislative bodies, in a Nation where more than half of our population is women, will treat our decision today as an invi- tation to enact abortion regulation reminiscent of the Dark Ages not only misreads our views but does scant justice to those who serve in such bodies and the people who elect them. III Both appellants and the United States as amicus curiae have urged that we overrule our decision in Roe v. Wade. Brief for Appellants 12-18; Brief for United States as Ami- cus Curiae 8-24. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has deter- mined that viability is the point at which its interest in poten- tial human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. 410 U. S., at 117-118. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas stat- ute unconstitutionally infringed the right to an abortion de- rived from the Due Process Clause, id., at 164, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases. OCTOBER TERM, 1988 Opinion of O'CONNOR, J. 492 U. S. Because none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution, the judgment of the Court of Appeals is Reversed. JUSTICE O'CONNOR, concurring in part and concurring in the judgment. I concur in Parts I, II-A, II-B, and I-C of the Court's opinion. I Nothing in the record before us or the opinions below in- dicates that subsections 1(1) and 1(2) of the preamble to Missouri's abortion regulation statute will affect a woman's decision to have an abortion. JUSTICE STEVENS, following appellees, see Brief for Appellees 22, suggests that the pre- amble may also "interfer[e] with contraceptive choices," post, at 564, because certain contraceptive devices act on a female ovum after it has been fertilized by a male sperm. The Mis- souri Act defines "conception" as "the fertilization of the ovum of a female by a sperm of a male," Mo. Rev. Stat. § 188.015(3) (1986), and invests "unborn children" with "pro- tectable interests in life, health, and well-being," § 1.205.1(2), from "the moment of conception..." § 1.205.3. JuS- TICE STEVENS asserts that any possible interference with a woman's right to use such postfertilization contraceptive devices would be unconstitutional under Griswold v. Con- necticut, 381 U. S. 479 (1965), and our subsequent contra- ception cases. Post, at 564-566. Similarly, certain amici suggest that the Missouri Act's preamble may prohibit the developing technology of in vitro fertilization, a technique used to aid couples otherwise unable to bear children in which a number of ova are removed from the woman and fertilized by male sperm. This process often produces excess fertilized ova ("unborn children" under the Missouri Act's definition) that are discarded rather than reinserted into the woman's uterus. Brief for Association of Reproductive Health Pro- WEBSTER v. REPRODUCTIVE HEALTH SERVICES 523 490 Opinion of O'CONNOR, J. fessionals et al. as Amici Curiae38. It may be correct that the use of postfertilization contraceptive devices is constitu- tionally protected by Griswold and its progeny, but, as with a woman's abortion decision, nothing in the record or the opin- ions below indicates that the preamble will affect a woman's decision to practice contraception. For that matter, nothing in appellees' original complaint, App. 8-21, or their motion in limine to limit testimony and evidence on their challenge to the preamble, id., at 57-59, indicates that appellees sought to enjoin potential violations of Griswold. Neither is there any indication of the possibility that the preamble might be applied to prohibit the performance of in vitro fertilization. I agree with the Court, therefore, that all of these intima- tions of unconstitutionality are simply too hypothetical to support the use of declaratory judgment procedures and in- junctive remedies in this case. Similarly, it seems to me to follow directly from our pre- vious decisions concerning state or federal funding of abor- tions, Harris v. McRae, 448 U. S. 297 (1980), Maher v. Roe, 432 U. S. 464 (1977), and Poelker v. Doe, 432 U. S. 519 (1977), that appellees' facial challenge to the constitutional- ity of Missouri's ban on the utilization of public facilities and the participation of public employees in the performance of abortions not necessary to save the life of the mother, Mo. Rev. Stat. §§ 188.210, 188.215 (1986), cannot succeed. Given Missouri's definition of "public facility" as "any pub- lic institution, public facility, public equipment, or any physi- cal asset owned, leased, or controlled by this state or any agency or political subdivisions thereof," § 188.200(2), there may be conceivable applications of the ban on the use of pub- lic facilities that would be unconstitutional. Appellees and amici suggest that the State could try to enforce the ban against private hospitals using public water and sewage lines, or against private hospitals leasing state-owned equipment or state land. See Brief for Appellees 49-50; Brief for National Association of Public Hospitals as Amicus Curiae OCTOBER TERM, 1988 Opinion of O'CONNOR, J. 492 U. S. 9-12. Whether some or all of these or other applications of § 188.215 would be constitutional need not be decided here. Maher, Poelker, and McRae stand for the proposition that some quite straightforward applications of the Missouri ban on the use of public facilities for performing abortions would be constitutional and that is enough to defeat appellees' as- sertion that the ban is facially unconstitutional. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must es- tablish that no set of circumstances exists under which the Act would be valid. The fact that the [relevant statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine out- side the limited context of the First Amendment." United States v. Salerno, 481 U. S. 739, 745 (1987). I also agree with the Court that, under the interpretation of § 188.205 urged by the State and adopted by the Court, there is no longer a case or controversy before us over the constitutionality of that provision. I would note, however, that this interpretation of § 188.205 is not binding on the Supreme Court of Missouri which has the final word on the meaning of that State's statutes. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 395 (1988); O'Brien v. Skinner, 414 U. S. 524, 531 (1974). Should it happen that § 188.205, as ultimately interpreted by the Missouri Supreme Court, does prohibit publicly employed health professionals from giving specific medical advice to pregnant women, "the vacation and dismissal of the complaint that has become moot 'clears the path for future relitigation of the issues between the parties,' should subsequent events rekindle their contro- versy." Deakins v. Monaghan, 484 U. S. 193, 201, n. 5 (1988), quoting United States v. Munsingwear, Inc., 340 U. S. 36, 40 (1950). Unless such events make their appearance and give rise to relitigation, I agree that we and all federal WEBSTER v. REPRODUCTIVE HEALTH SERVICES 490 Opinion of O'CONNOR, J. courts are without jurisdiction to hear the merits of this moot dispute. In its interpretation of Missouri's "determination of via- bility" provision, Mo. Rev. Stat. § 188.029 (1986), see ante, at 513-521, the plurality has proceeded in a manner unnec- essary to deciding the question at hand. I agree with the plurality that it was plain error for the Court of Appeals to interpret the second sentence of § 188.029 as meaning that "doctors must perform tests to find gestational age, fetal weight and lung maturity." 851 F. 2d 1071, 1075, n. 5 (CA8 1988) (emphasis in original). When read together with the first sentence of § 188.029-which requires a physician to "de- termine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinary skillful, careful, and prudent physician en- gaged in similar practice under the same or similar condi- tions"-it would be contradictory nonsense to read the sec- ond sentence as requiring a physician to perform viability examinations and tests in situations where it would be care- less and imprudent to do so. The plurality is quite correct: "the viability-testing provision makes sense only if the second sentence is read to require only those tests that are useful to making subsidiary findings as to viability," ante, at 514, and, I would add, only those examinations and tests that it would not be imprudent or careless to perform in the particular medical situation before the physician. Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court's past decisions concerning state regulation of abortion. There- fore, there is no necessity to accept the State's invitation to reexamine the constitutional validity of Roe v. Wade, 410 U. S. 113 (1973). Where there is no need to decide a con- stitutional question, it is a venerable principle of this Court's adjudicatory processes not to do so, for "[t]he Court will not 'anticipate a question of constitutional law in advance of the OCTOBER TERM, 1988 Opinion of O'CONNOR, J. 492 U. S. necessity of deciding it."' Ashwander v. TVA, 297 U. S. 288, 346 (1936) (Brandeis, J., concurring), quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885). Neither will it gener- ally "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." 297 U. S., at 347. Quite simply, "[i]t is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U. S. 283, 295 (1905). The Court today has accepted the State's every interpretation of its abortion statute and has upheld, under our existing precedents, every provision of that statute which is properly before us. Pre- cisely for this reason reconsideration of Roe falls not into any "good-cause exception" to this "fundamental rule of judicial restraint...." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157 (1984). See post, at 532-533 (SCALIA, J., concurring in part and concurring in judgment). When the constitutional inva- lidity of a State's abortion statute actually turns on the con- stitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully. In assessing § 188.029 it is especially important to recognize that appellees did not appeal the District Court's ruling that the first sentence of § 188.029 is constitutional. 662 F. Supp. 407, 420-422 (WD Mo. 1987). There is, accordingly, no dis- pute between the parties before us over the constitutionality of the "presumption of viability at 20 weeks," ante, at 515, created by the first sentence of § 188.029. If anything might arguably conflict with the Court's previous decisions concern- ing the determination of viability, I would think it is the intro- duction of this presumption. The plurality, see ante, at 515, refers to a passage from Planned Parenthoodof Central Mo. v. Danforth, 428 U. S. 52, 64 (1976): "The time when viability is achieved may vary with each pregnancy, and the deter- mination of whether a particular fetus is viable is, and must WEBSTER v. REPRODUCTIVE HEALTH SERVICES 527 490 Opinion of O'CONNOR, J. be, a matter for the judgment of the responsible attending physician." The 20-week presumption of viability in the first sentence of § 188.029, it could be argued (though, I would think, unsuccessfully), restricts "the judgment of the respon- sible attending physician," by imposing on that physician the burden of overcoming the presumption. This presumption may be a "superimpos[ition] [of] state regulation on the medi- cal determination whether a particular fetus is viable," ante, at 517, but, if so, it is a restriction on the physician's judg- ment that is not before us. As the plurality properly inter- prets the second sentence of § 188.029, it does nothing more than delineate means by which the unchallenged 20-week pre- sumption of viability may be overcome if those means are useful in doing so and can be prudently employed. Contrary to the plurality's suggestion, see ante, at 517, the District Court did not think the second sentence of § 188.029 uncon- stitutional for this reason. Rather, both the District Court and the Court of Appeals thought the second sentence to be unconstitutional precisely because they interpreted that sen- tence to impose state regulation on the determination of via- bility that it does not impose. Appellees suggest that the interpretation of § 188.029 urged by the State may "virtually eliminat[e] the constitu- tional issue in this case." Brief for Appellees 30. Appellees therefore propose that we should abstain from deciding that provision's constitutionality "in order to allow the state courts to render the saving construction the State has pro- posed." Ibid. Where the lower court has so clearly fallen into error I do not think abstention is necessary or prudent. Accordingly, I consider the constitutionality of the second sentence of § 188.029, as interpreted by the State, to deter- mine whether the constitutional issue is actually eliminated. I do not think the second sentence of § 188.029, as inter- preted by the Court, imposes a degree of state regulation on the medical determination of viability that in any way con- flicts with prior decisions of this Court. As the plurality OCTOBER TERM, 1988 Opinion of O'CONNOR, J. 492 U. S. recognizes, the requirement that, where not imprudent, phy- sicians perform examinations and tests useful to making sub- sidiary findings to determine viability "promot[es] the State's interest in potential human life rather than in maternal health." Ante, at 515. No decision of this Court has held that the State may not directly promote its interest in poten- tial life when viability is possible. Quite the contrary. In Thornburgh v. American College of Obstetriciansand Gyne- cologists, 476 U. S. 747 (1986), the Court considered a con- stitutional challenge to a Pennsylvania statute requiring that a second physician be present during an abortion performed "when viability is possible." Id., at 769-770. For guidance, the Court looked to the earlier decision in Planned Parent- hood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983), upholding a Missouri statute requiring the pres- ence of a second physician during an abortion performed after viability. Id., at 482-486 (opinion of Powell, J.); id., at 505 (O'CONNOR, J., concurring in judgment in part and dissenting in part). The Thornbitrgh majority struck down the Penn- sylvania statute merely because the statute had no exception for emergency situations and not because it found a constitu- tional difference between the State's promotion of its interest in potential life when viability is possible and when viability is certain. 476 U. S., at 770-771. Despite the clear recog- nition by the Thornburghmajority that the Pennsylvania and Missouri statutes differed in this respect, there is no hint in the opinion of the ThornbNrgh Court that the State's interest in potential life differs depending on whether it seeks to fur- ther that interest postviability or when viability is possible. Thus, all nine Members of the Thornburgh Court appear to have agreed that it is not constitutionally impermissible for the State to enact regulations designed to protect the State's interest in potential life when viability is possible. See id., at 811 (WHITE, J., dissenting); id., at 832 (O'CONNOR, J., dis- senting). That is exactly what Missouri has done in § 188.029. WEBSTER v. REPRODUCTIVE HEALTH SERVICES 490 Opinion of O'CONNOR, J. Similarly, the basis for reliance by the District Court and the Court.of Appeals below on Colautti v. Franklin, 439 U. S. 379 (1979), disappears when § 188.029 is properly inter- preted. In Colautti, the Court observed: "Because this point [of viability] may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascer- tainment of viability-be it weeks of gestation or fetal weight or any other single factor-as the determinant of when the State has a compelling interest in the life or health of the fetus. Viability is the critical point." Id., at 388-389. The courts below, on the interpretation of § 188.029 rejected here, found the second sentence of that provision at odds with this passage from Colautti. See 851 F. 2d, at 1074; 662 F. Supp., at 423. On this Court's interpretation of § 188.029 it is clear that Missouri has not substituted any of the "ele- ments entering into the ascertainment of viability" as "the determinant of when the State has a compelling interest in the life or health of the fetus." All the second sentence of § 188.029 does is to require, when not imprudent, the per- formance of "those tests that are useful to making subsidi- ary findings as to viability." Ante, at 514 (emphasis added). Thus, consistent with Colautti, viability remains the "critical point" under § 188.029. Finally, and rather halfheartedly, the plurality suggests that the marginal increase in the cost of an abortion created by Missouri's viability testing provision may make § 188.029, even as interpreted, suspect under this Court's decision in Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 434-439 (1983), striking down a second-trimester hospitalization requirement. See ante, at 517. I dissented from the Court's opinion in Akron because it was my view that, even apart from Roe's trimester framework which I continue to consider problematic, see Thornburgh, supra, at OCTOBER TERM, 1988 Opinion of O'CONNOR, J. 492 U. S. 828 (dissenting opinion), the Akron majority had distorted and misapplied its own standard for evaluating state regula- tion of abortion which the Court had applied with fair consis- tency in the past: that, previability, "a regulation imposed on a lawful abortion is not unconstitutional unless it unduly bur- dens the right to seek an abortion." Akron, supra, at 453 (dissenting opinion) (internal quotations omitted). It is clear to me that requiring the performance of ex- aminations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be medically imprudent to do so, does not impose an undue bur- den on a woman's abortion decision. On this ground alone I would reject the suggestion that § 188.029 as interpreted is unconstitutional. More to the point, however, just as I see no conflict between § 188.029 and Colautti or any decision of this Court concerning a State's ability to give effect to its interest in potential life, I see no conflict between § 188.029 and the Court's opinion in Akron. The second-trimester hospitalization requirement struck down in Akron imposed, in the majority's view, "a heavy, and unnecessary, burden," 462 U. S., at 438, more

Webster v. Reproductive Health Services 1989 PDF

Document Details

Tags

Related

Summary

Full Transcript

Upgrade to continue