Planned Parenthood of Central Missouri v. Danforth/Concurrence Stewart

by Potter Stewart

Mr. Justice Stewart, with whom Mr. Justice Powell joins, concurring.

While joining the Court's opinion, I write separately to indicate my understanding of some of the constitutional issues raised by this litigation.

With respect to the definition of viability in §2 (2) of the Act, it seems to me that the critical consideration is that the statutory definition has almost no operative significance. The State has merely required physicians performing abortions to certify that the fetus to be aborted is not viable. While the physician may be punished for failing to issue a certification, he may not be punished for erroneously concluding that the fetus is not viable. There is thus little chance that a physician's professional decision to perform an abortion will be "chilled."

I agree with the Court that the patient-consent provision in §3(2) is constitutional. While §3(2) obviously regulates the abortion decision during all stages of pregnancy, including the first trimester, I do not believe it conflicts with the statement in Roe v. Wade, 410 U.S. 113, 163, that "for the period of pregnancy prior to [approximately the end of the first trimester] the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State." That statement was made in the context of invalidating a state law aimed at thwarting a woman's decision to have an abortion. It was not intended to preclude the State from enacting a provision aimed at ensuring that the abortion decision is made in a knowing, intelligent, and voluntary fashion.

As to the provision of the law that requires a husband's consent to an abortion, §3 (3), the primary issue that it raises is whether the State may constitutionally recognize and give effect to a right on his part to participate in the decision to abort a jointly conceived child. This seems to me a rather more difficult problem than the Court acknowledges. Previous decisions have recognized that a man's right to father children and enjoy the association of his offspring is a constitutionally protected freedom. See Stanley v. Illinois, 405 U.S. 645; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535. But the Court has recognized as well that the Constitution protects "a woman's decision whether or not to terminate her pregnancy." Roe v. Wade, supra, at 153 (emphasis added). In assessing the constitutional validity of §3(3) we are called upon to choose between these competing rights. I agree with the Court that since "it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy...the balance weighs in her favor." Ante, at 71.

With respect to the state law's requirement of parental consent, §3(4), I think it clear that its primary constitutional deficiency lies in its imposition of an absolute limitation on the minor's right to obtain an abortion. The Court's opinion today in Bellotti v. Baird, post, at 147-148, suggests that a materially different constitutional issue would be presented under a provision requiring parental consent or consultation in most cases but providing for prompt (i) judicial resolution of any disagreement between the parent and the minor, or (ii) judicial determination that the minor is mature enough to give an informed consent without parental concurrence or that abortion in any event is in the minor's best interest. Such a provision would not impose parental approval as an absolute condition upon the minor's right but would assure in most instances consultation between the parent and child.^[1]

There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support. It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.^[2]

As to the constitutional validity of § 9 of the Act, prohibiting the use of the saline amniocentesis procedure, I agree fully with the views expressed by Mr. Justice Stevens.

Notes

1. . For some of the considerations that support the State's interest in encouraging parental consent, see the opinion of Mr. Justice Stevens, concurring in part and dissenting in part. Post, at 102-105.
2. . The mode of operation of one such clinic is revealed by the record in Bellotti v. Baird, post, p. 132, and accurately described by

appellants in that case:

"The counseling...occurs entirely on the day the abortion is to be performed.... It lasts for two hours and takes place in groups that include both minors and adults who are strangers to one another.... The physician takes no part in this counseling process.... Counseling is typically limited to a description of abortion procedures, possible complications, and birth control techniques....

"The abortion itself takes five to seven minutes.... The physician has no prior contact with the minor, and on the days that abortions are being performed at the [clinic], the physician,... may be performing abortions on many other adults and minors.... On busy days patients are scheduled in separate groups, consisting usually of five patients.... After the abortion [the physician] spends a brief period with the minor and others in the group in the recovery room...." Brief for Appellants in No. 75-73, O.T. 1975, pp. 43-44.