U.S. Supreme Court Webster v. Reproductive Health Svcs., 492
U.S. 490 (1989) Webster v. Reproductive Health
Services No. 88-605 Argued April 26, 1989 Decided July 3, 1989 492
U.S. 490 APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Appellees, state-employed health professionals and private
nonprofit corporations 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
protectable interests in life, health, and wellbeing," §§
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 counseling" 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
violated this Court's decisions in Roe v. Wade, 410 U. S. 113 , and
subsequent 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 Center for Reproductive Health, Inc., 462 U. S. 416 , 462 U. S. 444 ,
that "a State may not adopt one theory of when life begins to
justify its regulation of abortions." Page 492 U. S. 491 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 410 U. S.
161 -162. This Court has emphasized 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 , 432 U. S. 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 concrete way, it is inappropriate for federal courts to
address its meaning. Alabama State Federation of Labor v.
McAdory, 325 U. S. 450 , 325 U. S. 460 .
Pp. 492 U. S.
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 assistance 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 secure 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 , 489 U. S. 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 nontherapeutic 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 affiliated with a public hospital. Also
without merit is the assertion that Page 492 U. S. 492 Maher, 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 preference
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
employees for performing abortions. The cases in question all
support the view that the State need not commit any resources to
performing abortions, even if it can turn a profit by doing so. Pp. 492 U. S.
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 abortion is moot. The Court of Appeals did not
consider § 188.205 separately from §§ 188.210 and 188.215 -- which
respectively prohibit the use of public employees and facilities
for such counseling -- in holding all three sections
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 physicians or health care providers, but is
simply an instruction to the State's fiscal officers not to
allocate public funds for abortion counseling, appellees 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 , 484 U. S. 200 .
Pp. 492 U. S.
511 -513.

															THE CHIEF JUSTICE, joined by JUSTICE WHITE and JUSTICE KENNEDY,
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 exercised by practitioners in the
field; but which then provides, in its second sentence, that, in
making the viability determination, the physician shall Page 492 U. S. 493 perform such medical examinations and tests as are necessary to
make a finding of the unborn child's gestational age, weight, and
lung maturity -- is constitutional, since it permissibly furthers
the State's interest in protecting potential human life. Pp. 492 U. S.
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, including 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 requirement that the physician apply his reasonable
professional skill and judgment. 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. 492 U. S.
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 intended 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
23 1/2 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. 492 U. S.
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 410 U. S. 162 ,
recognized 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 410 U. S. 164 ,
and allowed States to regulate or proscribe abortions to protect
the unborn child only after viability, id. at 410 U. S. 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 , 439 U. S.
388 -389, stating that the viability determination is,
and must be, a matter for the responsible attending physician's
judgment. And, in light of District Court findings that the tests
increase the expenses of abortion, their validity Page 492 U. S. 494 may also be questioned under Akron, 462 U.S. at 462 U. S.
434 -435, which held that a requirement that
second-trimester abortions be performed in hospitals was invalid
because it substantially increased the expenses of those
procedures. Pp. 492 U. S.
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 reconsidering prior
constitutional rulings, notwithstanding stare decisis. E.g., Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528 . The Roe framework is hardly consistent with the notion of a
Constitution like ours that is cast in general terms and usually
speaks in general principles. The framework's key elements --
trimesters and viability -- 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. 492 U. S.
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
Constitution 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 detailed 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 attempting to elaborate the differences between
a "fundamental right" to an abortion, Akron, supra, at 462 U. S. 420 ,
n. 1, a "limited fundamental constitutional right," post at 492 U. S. 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 before,
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 Constitution puts beyond the reach of the democratic
process and that which it does not. Furthermore, the suggestion
that legislative bodies, in a Nation Page 492 U. S. 495 where more than half the population is female, will treat this
decision 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. 492 U. S.
520 -521.

															2. This case affords no occasion to disturb Roe 's
holding that a Texas statute which criminalized all nontherapeutic abortions unconstitutionally infringed the right to
an abortion derived from the Due Process Clause. Roe is
distinguishable on its facts, since Missouri has determined that
viability is the point at which its interest in potential human
life must be safeguarded. P. 492 U. S.
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 interpreted by the plurality, and that
the plurality should therefore not have proceeded to reconsider Roe v. Wade. This Court refrains from deciding
constitutional questions where there is no need to do so, and
generally does not formulate a constitutional rule broader than the
precise facts to which it is to be applied. Ashwander v.
TVA, 297 U. S. 288 , 297 U. S. 346 , 297 U. S. 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 employed. 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. Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.
S. 747 , 476 U. S.
770 -771. Similarly, the basis for reliance by the lower
courts on Colautti v. Franklin, 439 U.
S. 379 , 439 U. S.
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 increase in the cost of
an abortion created by § 188.029's viability testing provision, as
interpreted, conflict with Akron v. Akron Center for
Reproductive Health, 462 U. S. 416 , 462 U. S.
434 -439, since, here, such costs do not place a "heavy,
and unnecessary burden" on a woman's abortion decision, whereas the
statutory requirement in Akron, which related to Page 492 U. S. 496 previablity abortions, more than doubled a woman's costs.
Moreover, the statutory requirement in Akron 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 476 U. S.
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. 492 U. S.
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 policy. 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 juridical, 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 legislative 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,
skillfully to refrain from telling them so. Pp. 492 U. S.
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 respect to Parts II-D and III, in which WHITE
and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 492 U. S. 522 ,
and SCALIA, J., post, p. 492 U. S. 532 ,
filed opinions concurring 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. 492 U. S. 537 .
STEVENS, J., filed an opinion concurring in part and dissenting in
part, post, p. 492 U. S.
560 . Page 492 U. S. 498 CHIEF JUSTICE REHNQUIST announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II-A,
II-B, and II-C, and an opinion with respect Page 492 U. S. 499 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 violated this Court's decision
in Roe v. Wade, 410 U. S. 113 (1973), and cases following it. We noted probable jurisdiction, 488
U.S. 1003 (1989), and now reverse. Page 492 U. S. 500 I 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 existing state law concerning unborn
children and abortions. [ Footnote
1 ] Page 492 U. S. 501 The Act consisted of 20 provisions, 5 of which are now before
the Court. The first provision, or preamble, contains "findings" 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 wellbeing." Mo.Rev.Stat. §§
1.205.1(1), (2) (1986). The Act further requires that all Missouri
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. 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
performing

															"such medical examinations and tests as are necessary to make a
finding of the gestational age, weight, and lung maturity of the
unborn child."

															§ 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 facilities 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 declaratory 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 Page 492 U. S. 502 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 inherent risks involved in
childbirth"; and the woman's right to "receive . . . adequate
medical advice and treatment" concerning 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 abortion 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
gynecological services to the public, including abortion services
up to 22 weeks "gestational age," [ Footnote 2 ] and Planned Parenthood of Kansas City, which
provides abortion services up to 14 weeks gestational age. Id. at A9-A10. 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. To of the physicians perform abortions.
App. A54-A55.

															Several weeks after the complaint was filed, the District Court
temporarily restrained enforcement of several provisions of the
Act. Following a 3-day trial in December, 1986, the District Court
declared seven provisions of the Act unconstitutional and enjoined
their enforcement. 662 F.
Supp. 407 (WD Mo.1987). These provisions included the preamble,
§ 1.205; the "informed consent" provision, which required Page 492 U. S. 503 physicians to inform the pregnant woman of certain facts before
performing an abortion, § 188.039; the requirement that
post-16-week abortions be performed only in hospitals, § 188.025;
the mandated tests to determine viability, § 188.029; and the
prohibition on the use of public funds, employees, and facilities
to perform or assist nontherapeutic abortions, and the restrictions
on the use of public funds, employees, 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 , 439 U. S.
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
prohibition on the use of public facilities and employees to
perform 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 fundamental 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 hospitalization Page 492 U. S. 504 requirement for 16-week abortions, id. at 1073-1074,
and the prohibition on the use of public employees and facilities
for abortion counseling, id. at 1077-1080, but the State
has not appealed those parts of the judgment below. See Juris. Statement I-II. [ Footnote
3 ] 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 begins at
conception," and that "[u]nborn children have protectable interests
in life, health, and wellbeing." 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 persons, citizens, and residents of
this state," subject to the Constitution and this Court's
precedents. § 1.205.2. [ Footnote
4 ] In invalidating Page 492 U. S. 505 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 Center for Reproductive Health,
Inc., 462 U. S. 416 , 462 U. S. 444 (1983), in turn citing Roe v. Wade, 410 U.S. at 410 U. S.
159 -162. It rejected Missouri's claim that the preamble
was "abortion-neutral," and "merely determine[d] when life begins
in a nonabortion context, 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 regulates the performance of abortions" was that "the
state intended its abortion regulations to be understood against
the backdrop of its theory of life." Ibid. [ Footnote 5 ] 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 intended to guide the
interpretation of other provisions of the Act. Brief for Appellees
19-23. They maintain, for example, that the preamble's definition
of life may prevent physicians Page 492 U. S. 506 in public hospitals from dispensing certain forms of
contraceptives, such as the intrauterine device. Id. at
22.

															In our view, the Court of Appeals misconceived the meaning 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 432 U. S. 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 410 U. S.
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 petitioners 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
construction 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 325 U. S. 460 .
It will be time enough for federal courts to address the meaning of
the preamble should it be applied to restrict the activities of
appellees in some concrete way. Until then, this Page 492 U. S. 507 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 a to the thing in issue in the
case before it." Tyler v. Judges of Court of Registration, 179 U.
S. 405 , 179 U. S. 409 (1900). See also Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U. S. 464 , 454 U. S. 473 (1982). [ Footnote 6 ] We
therefore need not pass on the constitutionality of the Act's
preamble. B Section 188.210 provides that

															"[i]t shall be unlawful for any public employee within the scope
of his employment to perform or assist an abortion, not necessary
to save the life of the mother,"

															while § 188.215 makes it

															"unlawful for any public facility to be used for the purpose of
performing or assisting an abortion not necessary to save the life
of the mother. [ Footnote
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 , 489 U. S. 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 Medicaid recipients received
payments for medical services related Page 492 U. S. 508 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 obstacles -- 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 childbirth 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 Connecticut regulation."

															432 U.S. at 432 U. S. 474 .
Relying on Maher, the Court in Poelker v. Doe, 432 U. S. 519 , 432 U. S. 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 448 U. S. 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 necessary services generally, but not
for certain medically necessary Page 492 U. S. 509 abortions" was rationally related to the legitimate governmental
goal of encouraging childbirth. 448 U.S. at 448 U. S.
325 .

															The Court of Appeals distinguished these cases on the ground
that

															"[t]o 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 reasoned that the ban on the use of
public facilities

															"could prevent a woman's chosen doctor from performing an
abortion 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
increase 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 448 U. S. 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 448 U. S. 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 provisions 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
public funding. Maher, 432 U.S. at 432 U. S. 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 Page 492 U. S. 510 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 432 U. S. 474 ,
surely it may do so through the allocation 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 "obstacle 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 432 U. S.
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 available, it is difficult to
see how any procreational choice is burdened by the State's ban on
the use of its facilities or employees for performing abortions.
[ Footnote 8 ] Page 492 U. S. 511 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 432 U. S. 520 ; id. at 432 U. S. 524 (BRENNAN, J., dissenting). [ Footnote 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 432 U. S. 521 .
Thus we uphold the Act's restrictions on the use of public
employees and facilities for the performance or assistance of
nontherapeutic abortions. C The Missouri Act contains three provisions relating to
"encouraging or counseling a woman to have an abortion not
necessary to save her life." Section 188.205 states that no public
funds can be used for this purpose; § 188.210 states that public
employees cannot, within the scope of their employment, engage in
such speech; and § 188.215 forbids such speech in public
facilities. The Court of Appeals did not consider § 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 fourteenth amendment right to choose an
abortion after receiving Page 492 U. S. 512 the medical information necessary to exercise the right
knowingly and intelligently."

															851 F.2d at 1079. [ Footnote
10 ]

															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 expending public
funds." Brief for Appellants 43. [ Footnote 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 Caterpillar Inc. v. Williams, 482 U.
S. 386 , 482 U. S.
398 -399 (1987). A majority of the Court agrees with
appellees 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 , 484 U. S.
199 -201 (1988); United States v. Munsingwear,
Inc., 340 U. S. 36 , 340 U. S. 39 -40
(1950). We accordingly direct the Court of Appeals to vacate the
judgment of the District Court Page 492 U. S. 513 with instructions to dismiss the relevant part of the complaint. Deakins, 484 U.S. at 484 U. S.
200 .

															"Because this [dispute] was rendered moot in part by
[appellees'] willingness permanently 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
determination 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 gestational age, weight, and lung maturity
of the unborn child and shall enter such findings and determination
of viability in the medical record of the mother. [ Footnote 12 ]"

															As with the preamble, the parties disagree over the meaning of
this statutory provision. The State emphasizes the language of the
first sentence, which speaks in terms of the physician's
determination of viability being made by the standards of ordinary
skill in the medical profession. Brief for Appellants 32-35.
Appellees stress the language of the second 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. Page 492 U. S. 514 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 determine lung
maturity, is contrary to accepted medical practice 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 , 487 U. S. 483 (1988); see Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 472 U. S. 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.'" Philbrook v. Glodgett, 421 U.
S. 707 , 421 U. S. 713 (1975), quoting United States v. Heirs of
Boisdore , 8 How. 113, 49 U. S. 122 (1849). See Chemehuevi Tribe of Indians v. FPC, 420 U. S. 395 , 420 U. S.
402 -403 (1975); Kokoszka v. Belford, 417 U. S. 642 , 417 U. S. 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 487 U. S.
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 irrelevant to determining
viability or even dangerous to the mother and the fetus, the second
sentence of § 188.029 would Page 492 U. S. 515 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," [ Footnote
13 ] 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 Appeals' construction of § 188.029
violates well-accepted canons of statutory interpretation used in
the Missouri courts, see State ex rel. Stern Brothers & Co.
v. Stilley, 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, unreasonable 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 492 U. S.
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 "23 1/2 to 24 weeks gestation is the earliest point in
pregnancy where a reasonable possibility of viability Page 492 U. S. 516 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 410 U. S. 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 410 U. S. 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 necessary, in appropriate medical judgment, for
the preservation of the life or health of the mother." Id. at 165. [ Footnote 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 performing an abortion of a possibly viable
fetus was void for vagueness. Id. at 439 U. S.
390 -401. But in the course of reaching that conclusion,
the Court reaffirmed its earlier statement in Planned
Parenthood of Central Mo. v. Danforth, 428 U. S.
52 , 428 U. S. 64 (1976), that

															"'the determination of whether a particular Page 492 U. S. 517 fetus is viable is, and must be, a matter for the judgment of
the responsible attending physician.'"

															439 U.S. at 439 U. S. 396 .
JUSTICE BLACKMUN, post at 492 U. S. 545 ,
n. 6, ignores he statement in Colautti that

															"neither the legislature nor the courts may proclaim one of the
elements entering into the ascertainment 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 439 U. S.
388 -389. To the extent that § 188.029 regulates the
method for determining viability, it undoubtedly does superimpose
state regulation on the medical determination 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 462 U. S.
434 -435, where the Court held that a requirement that
second-trimester abortions 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 subsequent
cases like Colautti and Akron making
constitutional law in this area a virtual Procrustean bed. Statutes
specifying elements of informed consent to be provided abortion
patients, for example, were invalidated if they were thought to
"structur[e] . . . the dialogue between the woman and her
physician." Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U. S. 747 , 476 U. S. 763 (1986). As the dissenters in Thornburgh pointed out, such
a statute would have been sustained under any traditional standard
of judicial review, id. at 476 U. S. 802 (WHITE, J., dissenting), or for any other surgical procedure except
abortion. Id. at 476 U. S. 783 (Burger, C.J., dissenting). Page 492 U. S. 518 Stare decisis is a cornerstone of our legal system, but
it has less power in constitutional cases, where, save for
constitutional amendments, this Court is the only body able to make
needed changes. See United States v. Scott, 437 U. S.
82 , 437 U. S. 101 (1978). We have not refrained from reconsideration of a prior
construction of the Constitution that has proved "unsound in
principle and unworkable in practice." Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.
S. 528 , 469 U. S. 546 (1985); see Solorio v. United States, 483 U.
S. 435 , 483 U. S.
448 -450 (1987); Erie R. Co. v. Tompkins, 304 U. S. 64 , 304 U. S. 74 -78
(1938). We think the Roe trimester framework falls into
that category.

															In the first place, the rigid Roe framework is hardly
consistent 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 -- trimesters
and viability -- are not found in the text of the Constitution, or
in any place else one would expect to find a constitutional
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 doctrine. [ Footnote 15 ] AS JUSTICE WHITE has put it,
the trimester framework Page 492 U. S. 519 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 Parenthood of Central Mo. v. Danforth, 428 U.S. at 428 U. S. 99 (opinion concurring in part and dissenting in part). Cf.
Garcia, supra, at 469 U. S.
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 Thornburgh, writing in
the context of the Roe trimester analysis, would have
recognized this fact by positing against the "fundamental right"
recognized in Roe the State's "compelling interest" in
protecting potential human life throughout pregnancy. "[T]he
State's interest, if compelling after viability, is equally
compelling before viability." Thornburgh, 476 U.S. at 476 U. S. 795 (WHITE, J., dissenting); see id. at 476 U. S. 828 (O'CONNOR, J., dissenting) ("State has compelling interests in
ensuring 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 potential 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 satisfied that the
requirement of these tests permissibly furthers Page 492 U. S. 520 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 includes an
"unenumerated" general right to privacy as recognized 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
regulation, 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 carrying. The
experience of the Court in applying Roe v. Wade in later
cases, see supra at 492 U. S. 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 462 U. S. 420 ,
n. 1, a "limited fundamental constitutional right," which JUSTICE
BLACKMUN today treats Roe as having established, post at 492 U. S. 555 ,
or a liberty interest protected by the Due Process Clause, which we
believe it to be. The Missouri testing requirement here is
reasonably designed to ensure that abortions are not performed
where the fetus is viable -- an end which all concede is legitimate
-- and that is sufficient to sustain its constitutionality.

															JUSTICE BLACKMUN also accuses us, inter alia, of
cowardice and illegitimacy in dealing with "the most politically
divisive domestic legal issue of our time." Post at 492 U. S. 559 .
There is Page 492 U. S. 521 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 Colautti v. Franklin, 439 U. S. 379 (1979), and Akron v. Akron Center for Reproductive Health,
Inc., supra. But the goal of constitutional adjudication 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 matters of concern to them.
The goal of constitutional adjudication is to hold true the balance
between that which the Constitution 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 492 U. S. 538 , 492 U. S.
557 -558, that legislative bodies, in a Nation where more
than half of our population is women, will treat our decision today
as an invitation 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 Amicus
Curiae 8-24. The facts of the present case, however, differ
from those at issue in Roe. Here, Missouri has determined
that viability is the point at which its interest in potential
human life must be safeguarded. 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 410 U. S.
117 -118. This case therefore affords us no occasion to
revisit the holding of Roe, which was that the Texas
statute unconstitutionally infringed the right to an abortion
derived from the Due Process Clause, id. at 410 U. S. 164 ,
and we leave it undisturbed. To the extent indicated in our
opinion, we would modify and narrow Roe and succeeding
cases. Page 492 U. S. 522 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. [ Footnote 1 ]

															After Roe v. Wade, the State of Missouri's
then-existing abortion regulations, see Mo.Rev.Stat. §§
559.100, 542.380, and 563.300 (1969), were declared
unconstitutional by a three-judge federal court. This Court
summarily affirmed that judgment. Danforth 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 410 U. S.
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 "viability," § 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 during 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
recordkeeping 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 428 U. S. 63 -65,
the consent provision in § 3(2), id. at 428 U. S. 65 -67,
and the recordkeeping requirements. Id. at 428 U. S. 79 -81.
It struck down the spousal consent provision, id. at 428 U. S. 67 -72,
the parental consent provision, id. at 428 U. S. 72 -75,
the prohibition on abortions by amniocentesis, id. at 428 U. S. 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 428 U. S. 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 parental consent or
consent from the juvenile court for an abortion, § 188.028. In Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ascroft, 462 U. S. 476 (1983), the Court struck down the second-trimester hospitalization
requirement, id. at 462 U. S.
481 -482, but upheld the other provisions described
above. Id. at 462 U. S.
494 .

															[ Footnote 2 ]

															The Act defines "gestational age" as the "length of pregnancy as
measured from the first day of the woman's last menstrual period."
Mo.Rev.Stat. § 188.015(4) (1986).

															[ Footnote 3 ]

															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.

															[ Footnote 4 ]

															Section 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 wellbeing;"

															"(3) The natural parents of unborn children have protectable
interests in the life, health, and wellbeing 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 Constitution of the United
States, and decisional interpretations thereof by the 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 biological
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."

															[ Footnote 5 ]

															Judge Arnold dissented from this part of the Court of Appeals'
decision, arguing that Missouri's declaration of when life begins
should be upheld "insofar as it relates to subjects other than
abortion," such as "creating 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).

															[ Footnote 6 ]

															Appellees also claim that the legislature's preamble violates
the Missouri 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.

															[ Footnote 7 ]

															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 institution, 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).

															[ Footnote 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 Harris v.
McRae, 448 U. S. 297 , 448 U. S. 317 ,
n.19 (1980).

															[ Footnote 9 ]

															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 termination
of pregnancies." Doe v. Poelker, 497 F.2d 1063, 1065 (CA8 1974).

															[ Footnote 10 ]

															In a 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.

															[ Footnote 11 ]

															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 counseling' unlawful for anyone who is paid
from" public funds as defined in § 188.200. 662 F.
Supp. 407 , 426 (WD Mo.1987). [ Footnote 12 ]

															The 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).

															[ Footnote 13 ] 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").

															[ Footnote 14 ]

															The Court's subsequent cases have reflected this understanding. See Colautti v. Franklin, 439 U.
S. 379 , 439 U. S. 386 (1979) (emphasis added) ("For both logical and biological reasons,
we indicated in [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 further this interest by directly restricting a woman's
decision whether or not to terminate her pregnancy "); id. at 439 U. S. 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 Parenthood of Central Mo. v. Danforth, 428
U.S. at 428 U. S. 61 (State regulation designed to protect potential human life limited
to period "subsequent to viability"); Akron v. Akron Center for
Reproductive Health, Inc., 462 U. S. 416 , 462 U. S. 428 (1983), quoting Roe v. Wade, 410 U.S. at 410 U. S. 163 (emphasis added) (State's interest in protecting 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'"). [ Footnote 15 ]

															For 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 Center for Reproductive Health,
Inc., 462 U.S. at 462 U. S. 448 ,
but that it may not require that such information be furnished to
her only by the physician himself. Id. at 462 U. S. 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 performed
only in hospitals. Akron, supra, at 462 U. S.
437 -439. We do not think these distinctions are of any
constitutional import in view of our abandonment of the trimester
framework. JUSTICE BLACKMUN's claim, post at 492 U. S.
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
facilities, 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 framework.

															JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.

															I concur in Parts I, II-A, II-B, and II-C of the Court's
opinion. I Nothing in the record before us or the opinions below indicates
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 preamble may also
"interfer[e] with contraceptive choices," post at 492 U. S. 564 ,
because certain contraceptive devices act on a female ovum after it
has been fertilized by a male sperm. The Missouri 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 "protectable interests in life, health, and
wellbeing," § 1.205.1(2), from "the moment of conception. . . . " §
1.205.3. JUSTICE STEVENS asserts that any possible interference
with a woman's right to use such postfertilization contraceptive
devices would be unconstitutional under Griswold v.
Connecticut, 381 U. S. 479 (1965), and our subsequent contraception cases. Post at 492 U. S.
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 Professionals Page 492 U. S. 523 et al. as Amici Curiae 38. It may be correct
that the use of post-fertilization contraceptive devices is
constitutionally protected by Griswold and its progeny,
but, as with a woman's abortion decision, nothing in the record or
the opinions 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 intimations of
unconstitutionality are simply too hypothetical to support the use
of declaratory judgment procedures and injunctive remedies in this
case.

															Similarly, it seems to me to follow directly from our previous
decisions concerning state or federal funding of abortions, 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
constitutionality 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 public institution, 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), there may be conceivable applications of the ban
on the use of public 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 Page 492 U. S. 524 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' assertion 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 establish 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 outside the limited
context of the First Amendment." United States v. Salerno, 481 U.
S. 739 , 481 U. S. 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 , 484 U. S. 395 (1988); O'Brien v. Skinner, 414 U.
S. 524 , 414 U. S. 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
controversy." Deakins v. Monaghan, 484 U. S. 193 , 484 U. S. 201 ,
n. 5 (1988), quoting United States v. Munsingwear, Inc., 340 U. S. 36 , 340 U. S. 40 (1950). Unless such events make their appearance and give rise to
relitigation, I agree that we and all federal Page 492 U. S. 525 courts are without jurisdiction to hear the merits of this moot
dispute. II In its interpretation of Missouri's "determination of viability"
provision, Mo.Rev.Stat. § 188.029 (1986), see ante at 492 U. S.
513 -521, the plurality has proceeded in a manner
unnecessary 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 at 1075, n. 5 (emphasis in original).
When read together with the first sentence of § 188.029 -- which
requires a physician to

															"determine 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 engaged in
similar practice under the same or similar conditions"

															-- it would be contradictory nonsense to read the second
sentence as requiring a physician to perform viability examinations
and tests in situations where it would be careless 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 492 U. S. 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. Therefore, 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
constitutional 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 Page 492 U. S. 526 necessity of deciding it.'" Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 346 (1936) (Brandeis, J., concurring), quoting Liverpool, New York
and Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 113 U. S. 39 (1885). Neither will it generally "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 297 U. S. 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 , 196 U. S. 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. Precisely 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 , 467 U. S. 157 (1984). See post at 492 U. S.
532 -533 (SCALIA, J., concurring in part and concurring
in judgment). When the constitutional invalidity of a State's
abortion statute actually turns on the constitutional 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. at
420-422. There is, accordingly, no dispute between the parties
before us over the constitutionality of the "presumption of
viability at 20 weeks," ante at 492 U. S. 515 ,
created by the first sentence of § 188.029. If anything might
arguably conflict with the Court's previous decisions concerning
the determination of viability, I would think it is the
introduction of this presumption. The plurality, see ante at 492 U. S. 515 ,
refers to a passage from Planned Parenthood of Central Mo. v.
Danforth, 428 U. S. 52 , 428 U. S. 64 (1976):

															"The time when viability is achieved may vary with each
pregnancy, and the determination of whether a particular fetus is
viable is, and must Page 492 U. S. 527 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 responsible
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 medical
determination whether a particular fetus is viable," ante at 492 U. S. 517 ,
but, if so, it is a restriction on the physician's judgment that is
not before us. As the plurality properly interprets the second
sentence of § 188.029, it does nothing more than delineate means by
which the unchallenged 20-week presumption 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 492 U. S. 517 ,
the District Court did not think the second sentence of § 188.029
unconstitutional 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 sentence
to impose state regulation on the determination of viability that
it does not impose.

															Appellees suggest that the interpretation of § 188. 029 urged by
the State may "virtually eliminat[e] the constitutional 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 proposed." 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 determine whether the constitutional
issue is actually eliminated.

															I do not think the second sentence of § 188.029, as interpreted
by the Court, imposes a degree of state regulation on the medical
determination of viability that in any way conflicts with prior
decisions of this Court. As the plurality Page 492 U. S. 528 recognizes, the requirement that, where not imprudent,
physicians perform examinations and tests useful to making
subsidiary findings to determine viability "promot[es] the State's
interest in potential human life, rather than in maternal health." Ante at 492 U. S. 515 .
No decision of this Court has held that the State may not directly
promote its interest in potential life when viability is possible.
Quite the contrary. In Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.
S. 747 (1986), the Court considered a constitutional
challenge to a Pennsylvania statute requiring that a second
physician be present during an abortion performed "when viability
is possible." Id. at 476 U. S.
769 -770. For guidance, the Court looked to the earlier
decision in Planned Parenthood Assn. of Kansas City, Mo., Inc.
v. Ashcroft, 462 U. S. 476 (1983), upholding a Missouri statute requiring the presence of a
second physician during an abortion performed after viability. Id. at 462 U. S.
482 -486 (opinion of Powell, J.); id. at 462 U. S. 505 (O'CONNOR, J., concurring in judgment in part and dissenting in
part). The Thornburgh majority struck down the
Pennsylvania statute merely because the statute had no exception
for emergency situations, and not because it found a constitutional
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 476 U. S.
770 -771. Despite the clear recognition by the Thornburgh majority that the Pennsylvania and Missouri
statutes differed in this respect, there is no hint in the opinion
of the Thornburgh Court that the State's interest in
potential life differs depending on whether it seeks to further
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 476 U. S. 811 (WHITE, J., dissenting); id. at 476 U. S. 832 (O'CONNOR, J., dissenting). That is exactly what Missouri has done
in § 188.029. Page 492 U. S. 529 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 interpreted. 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 ascertainment 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 439 U. S.
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 "elements 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 performance of "those tests
that are useful to making subsidiary findings as to
viability." Ante at 492 U. S. 514 (emphasis added). Thus, consistent with Colautti, viability remains the "critical point" under § 188.029.

															Finally, and rather half-heartedly, 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 , 462 U. S.
434 -439 (1983), striking down a second-trimester
hospitalization requirement. See ante at 492 U. S. 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 Page 492 U. S. 530 476 U. S. 828 (dissenting opinion), the Akron majority had distorted and
misapplied its own standard for evaluating state regulation of
abortion which the Court had applied with fair consistency in the
past: that, previability, "a regulation imposed on a lawful
abortion is not unconstitutional unless it unduly burdens the right
to seek an abortion." Akron, supra, at 462 U. S. 453 (dissenting opinion) (internal quotations omitted).

															It is clear to me that requiring the performance of examinations
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 burden 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 462 U. S. 438 ,
more than doubling the cost of "women's access to a relatively
inexpensive, otherwise accessible, and safe abortion procedure." Ibid.; see also id. at 462 U. S. 434 .
By contrast, the cost of examinations and tests that could usefully
and prudently be performed when a woman is 20-24 weeks pregnant to
determine whether the fetus is viable would only marginally, if at
all, increase the cost of an abortion. See Brief for
American Association of Prolife Obstetricians and Gynecologists et al. as Amici Curiae 3 ("At twenty weeks
gestation, an ultrasound examination to determine gestational age
is standard medical practice. It is routinely provided by the
plaintiff clinics. An ultrasound examination can effectively
provide all three designated findings of sec. 188.029"); id. at 22 ("A finding of fetal weight can be obtained from
the same ultrasound test used to determine gestational age"); id. at 25 ("There are a number of different Page 492 U. S. 531 methods in standard medical practice to determine fetal lung
maturity at twenty or more weeks gestation. The most simple and
most obvious is by inference. It is well known that fetal lungs do
not mature until 33-34 weeks gestation. . . . If an assessment of
the gestational age indicates that the child is less than
thirty-three weeks, a general finding can be made that the fetal
lungs are not mature. This finding can then be used by the
physician in making his determination of viability under section
188.029"); cf. Brief for American Medical Association et al. as Amici Curiae 42 (no suggestion that
fetal weight and gestational age cannot be determined from the same
sonogram); id. at 43 (another clinical test for
gestational age and, by inference, fetal weight and lung maturity,
is an accurate report of the last menstrual period), citing Smith,
Frey, & Johnson, Assessing Gestational Age, 33 Am.Fam.Physician
215, 219-220 (1986).

															Moreover, the examinations and tests required by § 188.029 are
to be performed when viability is possible. This feature of §
188.029 distinguishes it from the second-trimester hospitalization
requirement struck down by the Akron majority. As the
Court recognized in Thornburgh, the State's compelling
interest in potential life postviability renders its interest in
determining the critical point of viability equally compelling. See supra at 492 U. S.
527 -528. Under the Court's precedents, the same cannot
be said for the Akron second-trimester hospitalization
requirement. As I understand the Court's opinion in Akron, therefore, the plurality's suggestion today that Akron casts doubt on the validity of § 188.029, even as the Court has
interpreted it, is without foundation, and cannot provide a basis
for reevaluating Roe. Accordingly, because the Court of
Appeals misinterpreted § 188.029, and because, properly
interpreted, § 188.029 is not inconsistent with any of this Court's
prior precedents, I would reverse the decision of the Court of
Appeals.

															In sum, I concur in Parts I, II-A, II-B, and II-C of the Court's
opinion and concur in the judgment as to Part II-D. Page 492 U. S. 532 JUSTICE SCALIA, concurring in part and concurring in the
judgment.

															I join Parts I, II-A, II-B, and II-C of the opinion of the
Court. As to Part II-D, I share JUSTICE BLACKMUN's view, post at 492 U. S. 556 ,
that it effectively would overrule Roe v. Wade, 410 U. S. 113 (1973). I think that should be done, but would do it more
explicitly. Since today we contrive to avoid doing it, and indeed
to avoid almost any decision of national import, I need not set
forth my reasons, some of which have been well recited in dissents
of my colleagues in other cases. See, e.g., Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U. S. 747 , 476 U. S.
786 -797 (1986) (WHITE, J., dissenting); Akron v.
Akron Center for Reproductive Health, Inc., 462 U.
S. 416 , 462 U. S.
453 -459 (1983) (O'CONNOR, J., dissenting); Roe v.
Wade, supra, at 410 U. S.
172 -178 (REHNQUIST, J., dissenting); Doe v.
Bolton, 410 U. S. 179 , 410 U. S.
221 -223 (1973) (WHITE, J., dissenting).

															The outcome of today's case will doubtless be heralded as a
triumph of judicial statesmanship. It is not that, unless it is
statesmanlike needlessly to prolong this Court's self-awarded
sovereignty over a field where it has little proper business, since
the answers to most of the cruel questions posed are political, and
not juridical -- a sovereignty which therefore quite properly, but
to the great damage of the Court, makes it the object of the sort
of organized public pressure that political institutions in a
democracy ought to receive.

															JUSTICE O'CONNOR's assertion, ante at 492 U. S. 526 ,
that a " fundamental rule of judicial restraint'" requires us to
avoid reconsidering Roe, cannot be taken seriously. By
finessing Roe we do not, as she suggests, ante at 492 U. S. 526 ,
adhere to the strict and venerable rule that we should avoid
"`decid[ing] questions of a constitutional nature.'" We have not
disposed of this case on some statutory or procedural ground, but
have decided, and could not avoid deciding, whether the Missouri
statute meets the requirements of the United States
Constitution. Page 492 U. S. 533 The only choice available is whether, in deciding that
constitutional question, we should use Roe v. Wade as the
benchmark, or something else. What is involved, therefore, is not
the rule of avoiding constitutional issues where possible, but the
quite separate principle that we will not "`formulate a rule of
constitutional law broader than is required by the precise facts to
which it is to be applied.'" Ante at 492 U. S. 526 .
The latter is a sound general principle, but one often departed
from when good reason exists. Just this Term, for example, in an
opinion authored by JUSTICE O'CONNOR, despite the fact that we had
already held a racially based set-aside unconstitutional because
unsupported by evidence of identified discrimination, which was all
that was needed to decide the case, we went on to outline the
criteria for properly tailoring race-based remedies in cases where
such evidence is present. Richmond v. J. A. Croson Co., 488 U. S. 469 , 488 U. S.
506 -508 (1989). Also this Term, in an opinion joined by
JUSTICE O'CONNOR, we announced the constitutional rule that
deprivation of the right to confer with counsel during trial
violates the Sixth Amendment even if no prejudice can be shown,
despite our finding that there had been no such deprivation on the
facts before us -- which was all that was needed to decide that
case. Perry v. Leeke, 488 U. S. 272 , 488 U. S.
278 -280 (1989); see id. at 488 U. S. 285 (KENNEDY, J., concurring in part). I have not identified with
certainty the first instance of our deciding a case on broader
constitutional grounds than absolutely necessary, but it is
assuredly no later than Marbury v.
Madison , 1 Cranch 137 (1803), where we held that
mandamus could constitutionally issue against the Secretary of
State, although that was unnecessary given our holding that the law
authorizing issuance of the mandamus by this Court was
unconstitutional.

															The Court has often spoken more broadly than needed in precisely
the fashion at issue here, announcing a new rule of constitutional
law when it could have reached the identical result by applying the
rule thereby displaced. To describe Page 492 U. S. 534 two recent opinions that JUSTICE O'CONNOR joined: In Daniels
v. Williams, 474 U. S. 327 (1986), we overruled our prior holding that a "deprivation" of
liberty or property could occur through negligent governmental
acts, ignoring the availability of the alternative constitutional
ground that, even if a deprivation had occurred, the State's
postdeprivation remedies satisfied due process, see id. at 474 U. S.
340 -343 (STEVENS, J., concurring in judgment). In Illinois v. Gates, 462 U. S. 213 (1983), we replaced the preexisting "two-pronged" constitutional
test for probable cause with a totality-of-the-circumstances
approach, ignoring the concurrence's argument that the same outcome
could have been reached under the old test, see id. at 462 U. S.
267 -272 (WHITE, J., concurring in judgment). It is rare,
of course, that the Court goes out of its way to acknowledge that its judgment could have been reached
under the old constitutional rule, making its adoption of the new
one unnecessary to the decision, but even such explicit
acknowledgment is not unheard of. See Commonwealth Edison Co.
v. Montana, 453 U. S. 609 (1981); Perez v. Campbell, 402 U.
S. 637 (1971). For a sampling of other cases where the
availability of a narrower, well-established ground is simply
ignored in the Court's opinion adopting a new constitutional rule,
though pointed out in separate opinions of some Justices, see
Michelin Tire Corp. v. Wages, 423 U.
S. 276 (1976); Pointer v. Texas, 380 U.
S. 400 (1965); and Mapp v. Ohio, 367 U.
S. 643 (1961). It would be wrong, in any decision, to
ignore the reality that our policy not to "formulate a rule of
constitutional law broader than is required by the precise facts"
has a frequently applied good-cause exception. But it seems
particularly perverse to convert the policy into an absolute in the
present case, in order to place beyond reach the inexpressibly
"broader than was required by the precise facts" structure
established by Roe v. Wade. The real question, then, is
whether there are valid reasons to go beyond the most stingy
possible holding today. It seems to me there are not only valid but
compelling ones. Page 492 U. S. 535 Ordinarily, speaking no more broadly than is absolutely required
avoids throwing settled law into confusion; doing so today
preserves a chaos that is evident to anyone who can read and count.
Alone sufficient to justify a broad holding is the fact that our
retaining control, through Roe, of what I believe to be,
and many of our citizens recognize to be, a political issue,
continuously distorts the public perception of the role of this
Court. We can now look forward to at least another Term with carts
full of mail from the public, and streets full of demonstrators,
urging us -- their unelected and life-tenured judges who have been
awarded those extraordinary, undemocratic characteristics precisely
in order that we might follow the law despite the popular will --
to follow the popular will. Indeed, I expect we can look forward to
even more of that than before, given our indecisive decision today.
And if these reasons for taking the unexceptional course of
reaching a broader holding are not enough, then consider the nature
of the constitutional question we avoid: in most cases, we do no
harm by not speaking more broadly than the decision requires.
Anyone affected by the conduct that the avoided holding would have
prohibited will be able to challenge it himself and have his day in
court to make the argument. Not so with respect to the harm that
many States believed, pre- Roe, and many may continue to
believe, is caused by largely unrestricted abortion. That will
continue to occur if the States have the constitutional power to
prohibit it, and would do so, but we skillfully avoid telling them
so. Perhaps those abortions cannot constitutionally be proscribed.
That is surely an arguable question, the question that
reconsideration of Roe v. Wade entails. But what is not at
all arguable, it seems to me, is that we should decide now, and not
insist that we be run into a corner before we grudgingly yield up
our judgment. The only sound reason for the latter course is to
prevent a change in the law -- but to think that desirable begs the
question to be decided. Page 492 U. S. 536 It was an arguable question today whether § 188.029 of the
Missouri law contravened this Court's understanding of Roe v.
Wade, * and I would have
examined Roe rather than Page 492 U. S. 537 examining the contravention. Given the Court's newly contracted
abstemiousness, what will it take, one must wonder, to permit us to
reach that fundamental question? The result of our vote today is
that we will not reconsider that prior opinion, even if most of the
Justices think it is wrong, unless we have before us a statute that
in fact contradicts it -- and even then (under our newly discovered
"no broader than necessary" requirement) only minor problematical
aspects of Roe will be reconsidered, unless one expects
state legislatures to adopt provisions whose compliance with Roe cannot even be argued with a straight face. It thus
appears that the mansion of constitutionalized abortion law,
constructed overnight in Roe v. Wade, must be disassembled
doorjamb by doorjamb, and never entirely brought down, no matter
how wrong it may be.

															Of the four courses we might have chosen today -- to reaffirm Roe, to overrule it explicitly, to overrule it sub
silentio, or to avoid the question -- the last is the least
responsible. On the question of the constitutionality of § 188.029,
I concur in the judgment of the Court and strongly dissent from the
manner in which it has been reached.

															* That question, compared with the question whether we should
reconsider and reverse Roe, is hardly worth a footnote,
but I think JUSTICE O'CONNOR answers that incorrectly as well. In Roe v. Wade, 410 U. S. 113 , 410 U. S.
165 -166 (1973), we said that

															"the physician [has the right] to administer medical treatment
according to his professional judgment up to the points where
important state interests provide compelling justifications for
intervention."

															We have subsequently made clear that it is also a matter of
medical judgment when viability (one of those points) is
reached.

															"The time when viability is achieved may vary with each
pregnancy, and the determination of whether a particular fetus is
viable is, and must be, a matter for the judgment of the
responsible attending physician." Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 , 428 U. S. 64 (1976). Section 188.029 conflicts with the purpose, and hence the
fair import, of this principle, because it will sometimes require a
physician to perform tests that he would not otherwise have
performed to determine whether a fetus is viable. It is therefore a
legislative imposition on the judgment of the physician, and one
that increases the cost of an abortion.

															JUSTICE O'CONNOR would nevertheless uphold the law because it
"does not impose an undue burden on a woman's abortion decision." Ante at 492 U. S. 530 .
This conclusion is supported by the observation that the required
tests impose only a marginal cost on the abortion procedure, far
less of an increase than the cost-doubling hospitalization
requirement invalidated in Akron v. Akron Center for
Reproductive Health, Inc., 462 U. S. 416 (1983). See ante at 492 U. S.
530 -531. The fact that the challenged regulation is less
costly than what we struck down in Akron tells us only
that we cannot decide the present case on the basis of that earlier
decision. It does not tell us whether the present requirement is an
"undue burden," and I know of no basis for determining that this
particular burden (or any other for that matter) is "due." One
could with equal justification conclude that it is not. To avoid
the question of Roe v. Wade's validity, with the attendant
costs that this will have for the Court and for the principles of
self-governance, on the basis of a standard that offers "no guide
but the Court's own discretion," Baldwin v. Missouri, 281 U. S. 586 , 281 U. S. 595 (1930) (Holmes, J., dissenting), merely adds to the irrationality
of what we do today.

															Similarly irrational is the new concept that JUSTICE O'CONNOR
introduces into the law in order to achieve her result, the notion
of a State's "interest in potential life when viability is
possible." Ante at 492 U. S. 528 .
Since "viability" means the mere possibility (not the
certainty) of survivability outside the womb, "possible viability"
must mean the possibility of a possibility of survivability outside
the womb. Perhaps our next opinion will expand the third trimester
into the second even further, by approving state action designed to
take account of "the chance of possible viability."

															JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, concurring in part and dissenting in part.

															Today, Roe v. Wade, 410 U. S. 113 (1973), and the fundamental constitutional right of women to decide
whether to terminate a pregnancy, survive, but are not secure.
Although the Court extricates itself from this case without making
a single, even incremental, change in the law of abortion, the
plurality and JUSTICE SCALIA would overrule Roe (the first
silently, the other explicitly) and would return to the States Page 492 U. S. 538 virtually unfettered authority to control the quintessentially
intimate, personal, and life-directing decision whether to carry a
fetus to term. Although today, no less than yesterday, the
Constitution and the decisions of this Court prohibit a State from
enacting laws that inhibit women from the meaningful exercise of
that right, a plurality of this Court implicitly invites every
state legislature to enact more and more restrictive abortion
regulations in order to provoke more and more test cases, in the
hope that, sometime down the line, the Court will return the law of
procreative freedom to the severe limitations that generally
prevailed in this country before January 22, 1973. Never in my
memory has a plurality announced a judgment of this Court that so
foments disregard for the law and for our standing decisions.

															Nor in my memory has a plurality gone about its business in such
a deceptive fashion. At every level of its review, from its effort
to read the real meaning out of the Missouri statute to its
intended evisceration of precedents and its deafening silence about
the constitutional protections that it would jettison, the
plurality obscures the portent of its analysis. With feigned
restraint, the plurality announces that its analysis leaves Roe "undisturbed," albeit "modif[ied] and narrow[ed]." Ante at 492 U. S. 521 .
But this disclaimer is totally meaningless. The plurality opinion
is filled with winks, and nods, and knowing glances to those who
would do away with Roe explicitly, but turns a stone face
to anyone in search of what the plurality conceives as the scope of
a woman's right under the Due Process Clause to terminate a
pregnancy free from the coercive and brooding influence of the
State. The simple truth is that Roe would not survive the
plurality's analysis, and that the plurality provides no substitute
for Roe 's protective umbrella.

															I fear for the future. I fear for the liberty and equality of
the millions of women who have lived and come of age in the 16
years since Roe was decided. I fear for the integrity of,
and public esteem for, this Court.

															I dissent. Page 492 U. S. 539 I THE CHIEF JUSTICE parades through the four challenged sections
of the Missouri statute seriatim. I shall not do this, but
shall relegate most of my comments as to those sections to the
margin. [ Footnote 2/1 ] Although I
disagree with the Court's consideration Page 492 U. S. 540 of §§ 1.205, 188.210, and 188.215, and am especially disturbed
by its misapplication of our past decisions in upholding Missouri's
ban on the performance of abortions at Page 492 U. S. 541 "public facilities," its discussion of these provisions is
merely prologue to the plurality's consideration of the statute's
viability testing requirement, § 188.029 -- the only section of the
Missouri statute that the plurality construes as implicating Roe itself. There, tucked away at the end of its opinion,
the plurality suggests a radical reversal of the law of abortion;
and there, primarily, I direct my attention.

															In the plurality's view, the viability testing provision imposes
a burden on second-trimester abortions as a way of furthering the
State's interest in protecting the potential life of the fetus.
Since, under the Roe framework, the State may not fully
regulate abortion in the interest of potential life (as opposed to
maternal health) until the third trimester, the plurality finds it
necessary, in order to save the Missouri testing provision, to
throw out Roe's trimester framework. Ante at 492 U. S.
518 -520. In flat contradiction to Roe, 410 U.S.
at 410 U. S. 163 ,
the plurality concludes that the State's interest in potential life
is compelling before viability, and upholds the testing
provision Page 492 U. S. 542 because it "permissibly furthers" that state interest. Ante at 492 U. S.
519 . A At the outset, I note that, in its haste to limit abortion
rights, the plurality compounds the errors of its analysis by
needlessly reaching out to address constitutional questions that
are not actually presented. The conflict between § 188.029 and Roe's trimester framework, which purportedly drives the
plurality to reconsider our past decisions, is a contrived
conflict: the product of an aggressive misreading of the viability
testing requirement and a needlessly wooden application of the Roe framework.

															The plurality's reading of § 188.029 is irreconcilable with the
plain language of the statute, and is in derogation of this Court's
settled view that " district courts and courts of appeals are
better schooled in and more able to interpret the laws of their
respective States.'" Frisby v. Schultz, 487 U.
S. 474 , 487 U. S. 482 (1988), quoting Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 472 U. S.
499 -500 (1985). Abruptly setting aside the construction
of § 188.029 adopted by both the District Court and Court of
Appeals as "plain error," the plurality reads the viability testing
provision as requiring only that, before a physician may perform an
abortion on a woman whom he believes to be carrying a fetus of 20
or more weeks gestational age, the doctor must determine whether
the fetus is viable and, as part of that exercise, must, to the
extent feasible and consistent with sound medical practice, conduct
tests necessary to make findings of gestational age, weight, and
lung maturity. Ante at 492 U. S.
514 -517. But the plurality's reading of the provision,
according to which the statute requires the physician to perform
tests only in order to determine viability, ignores the
statutory language explicitly directing that "the physician shall perform or cause to be performed
such medical examinations and tests as are necessary to make a
finding of the gestational age, weight, and lung maturity of
the unborn child and shall enter such findings"

															in the mother's medical record. § 188.029 (emphasis added).
The Page 492 U. S. 543 statute's plain language requires the physician to undertake
whatever tests are necessary to determine gestational age, weight,
and lung maturity, regardless of whether these tests are necessary
to a finding of viability, and regardless of whether the tests
subject the pregnant woman or the fetus to additional health risks
or add substantially to the cost of an abortion. [ Footnote 2/2 ]

															Had the plurality read the statute as written, it would have had
no cause to reconsider the Roe framework. As properly
construed, the viability testing provision does not pass
constitutional muster under even a rational basis standard, the
least restrictive level of review applied by this Court. See
Williamson v. Lee Optical Co., 348 U.
S. 483 (1955). By mandating tests to determine fetal
weight and lung maturity for every fetus thought to be more than 20
weeks gestational age, the statute requires physicians to undertake
procedures, such as amniocentesis, that, in the situation
presented, have no medical justification, impose significant
additional health risks on both the pregnant woman and the fetus,
and bear no rational relation to the State's interest in protecting
fetal life. [ Footnote 2/3 ] As
written, § 188.029 is an arbitrary imposition of discomfort, risk,
and expense, furthering no discernible interest except to make the
procurement of an abortion as arduous and difficult as possible.
Thus, were it not for Page 492 U. S. 544 the plurality's tortured effort to avoid the plain import of §
188.029, it could have struck down the testing provision as
patently irrational irrespective of the Roe framework.
[ Footnote 2/4 ]

															The plurality eschews this straightforward resolution in the
hope of precipitating a constitutional crisis. Far from avoiding
constitutional difficulty, the plurality attempts to engineer a
dramatic retrenchment in our jurisprudence by exaggerating the
conflict between its untenable construction of § 188.029 and the Roe trimester framework.

															No one contests that, under the Roe framework, the
State, in order to promote its interest in potential human life,
may regulate and even proscribe nontherapeutic abortions once the
fetus becomes viable. Roe, 410 U.S. at 410 U. S.
164 -165. If, as the plurality appears to hold, the
testing provision simply requires a physician to use appropriate
and medically sound tests to determine whether the fetus is
actually viable when the estimated gestational age is greater than
20 weeks (and therefore within what the District Court found to be
the margin of error for viability, ante at 492 U. S.
515 -516), then I see little or no conflict with Roe. [ Footnote 2/5 ]
Nothing in Roe, or any of its progeny, holds that a State
may not effectuate its compelling interest in the potential life of
a viable fetus by seeking to ensure that no viable fetus is
mistakenly aborted because of the inherent lack of precision in
estimates of gestational age. A requirement that a physician make a
finding of viability, one way or Page 492 U. S. 545 the other, for every fetus that falls within the range of
possible viability does no more than preserve the State's
recognized authority. Although, as the plurality correctly points
out, such a testing requirement would have the effect of imposing
additional costs on second-trimester abortions where the tests
indicated that the fetus was not viable, these costs would be
merely incidental to, and a necessary accommodation of, the State's
unquestioned right to prohibit nontherapeutic abortions after the
point of viability. In short, the testing provision, as construed
by the plurality, is consistent with the Roe framework,
and could be upheld effortlessly under current doctrine. [ Footnote 2/6 ]

															How ironic it is, then, and disingenuous, that the plurality
scolds the Court of Appeals for adopting a construction of the
statute that fails to avoid constitutional difficulties. Ante at Page 492 U. S. 546 492 U. S. 514 , 492 U. S. 515 .
By distorting the statute, the plurality manages to avoid
invalidating the testing provision on what should have been
noncontroversial constitutional grounds; having done so, however,
the plurality rushes headlong into a much deeper constitutional
thicket, brushing past an obvious basis for upholding § 188.029 in
search of a pretext for scuttling the trimester framework.
Evidently, from the plurality's perspective, the real problem with
the Court of Appeals' construction of § 188.029 is not that it
raised a constitutional difficulty, but that it raised the wrong
constitutional difficulty -- one not implicating Roe. The
plurality has remedied that, traditional canons of construction and
judicial forbearance notwithstanding. B Having set up the conflict between § 188.029 and the Roe trimester framework, the plurality summarily discards Roe's analytic core as " unsound in principle and
unworkable in practice.'" Ante at 492 U. S. 518 ,
quoting Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528 , 469 U. S. 546 (1985). This is so, the plurality claims, because the key elements
of the framework do not appear in the text of the Constitution,
because the framework more closely resembles a regulatory code than
a body of constitutional doctrine, and because, under the
framework, the State's interest in potential human life is
considered compelling only after viability, when, in fact, that
interest is equally compelling throughout pregnancy. Ante at 492 U. S.
519 -520. The plurality does not bother to explain these
alleged flaws in Roe. Bald assertion masquerades as
reasoning. The object, quite clearly, is not to persuade, but to
prevail. 1 The plurality opinion is far more remarkable for the arguments
that it does not advance than for those that it does. The plurality
does not even mention, much less join, the true jurisprudential
debate underlying this case: whether the Constitution includes an
"unenumerated" general right to Page 492 U. S. 547 privacy as recognized in many of our decisions, most notably Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe, and, more specifically, whether, and to
what extent, such a right to privacy extends to matters of
childbearing and family life, including abortion. See, e.g.,
Eisenstadt v. Baird, 405 U. S. 438 (1972) (contraception); Loving v. Virginia, 388 U. S.
1 (1967) (marriage); Skinner v. Oklahoma ex rel.
Williamson, 316 U. S. 535 (1942) (procreation); Pierce v. Society of Sisters, 268 U. S. 510 (1925) (childrearing). [ Footnote
2/7 ] These are questions of unsurpassed significance in this
Court's interpretation of the Constitution, and mark the
battleground upon which this case was fought by the parties, by the
Solicitor General as amicus on behalf of petitioners, and
by an unprecedented number of amici. On these grounds,
abandoned by the plurality, the Court should decide this case.

															But rather than arguing that the text of the Constitution makes
no mention of the right to privacy, the plurality complains that
the critical elements of the Roe framework --
trimesters Page 492 U. S. 548 and viability -- do not appear in the Constitution, and are,
therefore, somehow inconsistent with a Constitution cast in general
terms. Ante at 492 U. S.
518 -519. Were this a true concern, we would have to
abandon most of our constitutional jurisprudence. As the plurality
well knows, or should know, the "critical elements" of countless
constitutional doctrines nowhere appear in the Constitution's text.
The Constitution makes no mention, for example, of the First
Amendment's "actual malice" standard for proving certain libels, see New York Times Co. v. Sullivan, 376 U.
S. 254 (1964), or of the standard for determining when
speech is obscene. See Miller v. California, 413 U. S.
15 (1973). Similarly, the Constitution makes no mention
of the rational basis test, or the specific verbal formulations of
intermediate and strict scrutiny by which this Court evaluates
claims under the Equal Protection Clause. The reason is simple.
Like the Roe framework, these tests or standards are not,
and do not purport to be, rights protected by the Constitution.
Rather, they are judge-made methods for evaluating and measuring
the strength and scope of constitutional rights or for balancing
the constitutional rights of individuals against the competing
interests of government.

															With respect to the Roe framework, the general
constitutional principle, indeed the fundamental constitutional
right, for which it was developed is the right to privacy, see,
e.g., Griswold v. Connecticut, 381 U.
S. 479 (1965), a species of "liberty" protected by the
Due Process Clause, which under our past decisions safeguards the
right of women to exercise some control over their own role in
procreation. As we recently reaffirmed in Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986), few decisions are "more basic to individual dignity and
autonomy" or more appropriate to that "certain private sphere of
individual liberty" that the Constitution reserves from the
intrusive reach of government than the right to make the uniquely
personal, intimate, and self-defining decision whether to end Page 492 U. S. 549 a pregnancy. Id. at 476 U. S. 772 .
It is this general principle, the " moral fact that a person
belongs to himself and not others nor to society as a whole,'" id. at 476 U. S. 777 ,
n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6
Phil. & Pub.Aff. 288-289 (1977), that is found in the
Constitution. See Roe, 410 U.S. at 410 U. S.
152 -153. The trimester framework simply defines and
limits that right to privacy in the abortion context to
accommodate, not destroy, a State's legitimate interest in
protecting the health of pregnant women and in preserving potential
human life. Id. at 410 U. S.
154 -162. Fashioning such accommodations between
individual rights and the legitimate interests of government,
establishing benchmarks and standards with which to evaluate the
competing claims of individuals and government, lies at the very
heart of constitutional adjudication. To the extent that the
trimester framework is useful in this enterprise, it is not only
consistent with constitutional interpretation, but necessary to the
wise and just exercise of this Court's paramount authority to
define the scope of constitutional rights. The plurality next alleges that the result of the trimester
framework has "been a web of legal rules that have become
increasingly intricate, resembling a code of regulations, rather
than a body of constitutional doctrine." Ante at 492 U. S. 518 .
Again, if this were a true and genuine concern, we would have to
abandon vast areas of our constitutional jurisprudence. The
plurality complains that, under the trimester framework, the Court
has distinguished between a city ordinance requiring that
second-trimester abortions be performed in clinics and a state law
requiring that these abortions be performed in hospitals, or
between laws requiring that certain information be furnished to a
woman by a physician or his assistant and those requiring that such
information be furnished by the physician exclusively. Ante at 492 U. S. 518 ,
n. 15, citing Simopoulos v. Virginia, 462 U.
S. 506 (1983), Page 492 U. S. 550 and Akron v. Akron Center for Reproductive Health,
Inc., 462 U. S. 416 (1983). Are these distinctions any finer, or more "regulatory,"
than the distinctions we have often drawn in our First Amendment
jurisprudence, where, for example, we have held that a "release
time" program permitting public school students to leave school
grounds during school hours to receive religious instruction does
not violate the Establishment Clause, even though a release time
program permitting religious instruction on school grounds does
violate the Clause? Compare Zorach v. Clauson, 343 U. S. 306 (1952), with Illinois ex rel. McCollum v. Board of Education of
School Dist. No. 71, Champaign County, 333 U.
S. 203 (1948). Our Fourth Amendment jurisprudence
recognizes factual distinctions no less intricate. Just this Term,
for example, we held that, while an aerial observation from a
helicopter hovering at 400 feet does not violate any reasonable
expectation of privacy, such an expectation of privacy would be
violated by a helicopter observation from an unusually low
altitude. Florida v. Riley, 488 U.
S. 445 , 488 U. S. 451 (1989) (O'CONNOR, J., concurring in judgment). Similarly, in a
Sixth Amendment case, the Court held that, although an overnight
ban on attorney-client communication violated the constitutionally
guaranteed right to counsel, Geders v. United States, 425 U. S. 80 (1976), that right was not violated when a trial judge separated a
defendant from his lawyer during a 15-minute recess after the
defendant's direct testimony. Perry v. Leeke, 488 U.
S. 272 (1989).

															That numerous constitutional doctrines result in narrow
differentiations between similar circumstances does not mean that
this Court has abandoned adjudication in favor of regulation.
Rather, these careful distinctions reflect the process of
constitutional adjudication itself, which is often highly
fact-specific, requiring such determinations as whether state laws
are "unduly burdensome" or "reasonable" or bear a "rational" or
"necessary" relation to asserted state interests. In a recent due
process case, THE CHIEF JUSTICE wrote for the Page 492 U. S. 551 Court:

															"[M]any branches of the law abound in nice distinctions that may
be troublesome but have been thought nonetheless necessary:"

															"I do not think we need trouble ourselves with the thought that
my view depends upon differences of degree. The whole law does so
as soon as it is civilized." Daniels v. Williams, 474 U. S. 327 , 474 U. S. 334 (1986), quoting LeRoy Fibre Co. v. Chicago, M. & St. P. R.
Co., 232 U. S. 340 , 232 U. S. 354 (1914) (Holmes, J., partially concurring).

															These "differences of degree" fully account for our holdings in Simopoulos, supra, and Akron, supra. Those
decisions rest on this Court's reasoned and accurate judgment that
hospitalization and doctor counseling requirements unduly burdened
the right of women to terminate a pregnancy, and were not
rationally related to the State's asserted interest in the health
of pregnant women, while Virginia's substantially less restrictive
regulations were not unduly burdensome and did rationally serve the
State's interest. [ Footnote 2/8 ]
That the Court exercised its best judgment in evaluating these
markedly different statutory schemes no more established the Court
as an " ex officio medical board,'" ante at 492 U. S. 519 ,
quoting Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 , 428 U. S. 99 (1976) (opinion of WHITE, J., concurring in part and dissenting in
part), than our decisions involving religion in the public schools
establish the Court as a national school board, or our decisions
concerning prison regulations establish the Court as Page 492 U. S. 552 a bureau of prisons. See Thornburgh v. Abbott, 490 U. S. 401 (1989) (adopting different standard of First Amendment review for
incoming, as opposed to outgoing, prison mail). If, in delicate and
complicated areas of constitutional law, our legal judgments "have
become increasingly intricate," ante at 492 U. S. 518 ,
it is not, as the plurality contends, because we have overstepped
our judicial role. Quite the opposite: the rules are intricate
because we have remained conscientious in our duty to do justice
carefully, especially when fundamental rights rise or fall with our
decisions. 3 Finally, the plurality asserts that the trimester framework
cannot stand because the State's interest in potential life is
compelling throughout pregnancy, not merely after viability. Ante at 492 U. S. 519 .
The opinion contains not one word of rationale for its view of the
State's interest. This "it is so because we say so" jurisprudence
constitutes nothing other than an attempted exercise of brute
force; reason, much less persuasion, has no place.

															In answering the plurality's claim that the State's interest in
the fetus is uniform and compelling throughout pregnancy, I cannot
improve upon what JUSTICE STEVENS has written:

															"I should think it obvious that the State's interest in the
protection of an embryo -- even if that interest is defined as
'protecting those who will be citizens' . . . -- increases
progressively and dramatically as the organism's capacity to feel
pain, to experience pleasure, to survive, and to react to its
surroundings increases day by day. The development of a fetus --
and pregnancy itself -- are not static conditions, and the
assertion that the government's interest is static simply ignores
this reality. . . . [U]nless the religious view that a fetus is a
'person' is adopted . . . there is a fundamental and
well-recognized difference between a fetus and a human being;
indeed, if Page 492 U. S. 553 there is not such a difference, the permissibility of
terminating the life of a fetus could scarcely be left to the will
of the state legislatures. And if distinctions may be drawn between
a fetus and a human being in terms of the state interest in their
protection -- even though the fetus represents one of 'those who
will be citizens' -- it seems to me quite odd to argue that
distinctions may not also be drawn between the state interest in
protecting the freshly fertilized egg and the state interest in
protecting the 9-month-gestated, fully sentient fetus on the eve of
birth. Recognition of this distinction is supported not only by
logic, but also by history and by our shared experiences." Thornburgh, 476 U.S. at 476 U. S.
778 -779 (footnote omitted). See also Roe, 410
U.S. at 410 U. S.
129 -147.

															For my own part, I remain convinced, as six other Members of
this Court 16 years ago were convinced, that the Roe framework, and the viability standard in particular, fairly,
sensibly, and effectively functions to safeguard the constitutional
liberties of pregnant women while recognizing and accommodating the
State's interest in potential human life. The viability line
reflects the biological facts and truths of fetal development; it
marks that threshold moment prior to which a fetus cannot survive
separate from the woman and cannot reasonably and objectively be
regarded as a subject of rights or interests distinct from, or
paramount to, those of the pregnant woman. At the same time, the
viability standard takes account of the undeniable fact that, as
the fetus evolves into its postnatal form, and as it loses its
dependence on the uterine environment, the State's interest in the
fetus' potential human life, and in fostering a regard for human
life in general, becomes compelling. As a practical matter, because
viability follows "quickening" -- the point at which a woman feels
movement in her womb -- and because viability occurs no earlier
than 23 weeks gestational age, it establishes an easily applicable
standard for regulating abortion while Page 492 U. S. 554 providing a pregnant woman ample time to exercise her
fundamental right with her responsible physician to terminate her
pregnancy. [ Footnote 2/9 ] Although
I have stated previously for a majority of this Court that
"[c]onstitutional rights do not always have easily ascertainable
boundaries," to seek and establish those boundaries remains the
special responsibility of this Court. Thornburgh, 476 U.S.
at 476 U. S. 771 .
In Roe, we discharged that responsibility as logic and
science compelled. The plurality today advances not one reasonable
argument as to why our judgment in that case was wrong and should
be abandoned. C Having contrived an opportunity to reconsider the Roe framework, and then having discarded that framework, the plurality
finds the testing provision unobjectionable because it "permissibly
furthers the State's interest in protecting potential human life." Ante at 492 U. S.
519 -520. This newly minted Page 492 U. S. 555 standard is circular, and totally meaningless. Whether a
challenged abortion regulation "permissibly furthers" a legitimate
state interest is the question that courts must answer in abortion
cases, not the standard for courts to apply. In keeping with the
rest of its opinion, the plurality makes no attempt to explain or
to justify its new standard, either in the abstract or as applied
in this case. Nor could it. The "permissibly furthers" standard has
no independent meaning, and consists of nothing other than what a
majority of this Court may believe at any given moment in any given
case. The plurality's novel test appears to be nothing more than a
dressed-up version of rational basis review, this Court's most
lenient level of scrutiny. One thing is clear, however: were the
plurality's "permissibly furthers" standard adopted by the Court,
for all practical purposes, Roe would be overruled.
[ Footnote 2/10 ]

															The "permissibly furthers" standard completely disregards the
irreducible minimum of Roe: the Court's recognition that a
woman has a limited fundamental constitutional right to decide
whether to terminate a pregnancy. That right receives no meaningful
recognition in the plurality's written opinion. Since, in the
plurality's view, the State's interest in potential life is
compelling as of the moment of conception, and is therefore served
only if abortion is abolished, every hindrance to a woman's ability
to obtain an abortion must be "permissible." Indeed, the more
severe the hindrance, the more effectively (and permissibly) the
State's interest would be furthered. A tax on abortions or a
criminal prohibition would both satisfy the plurality's standard.
So, for that Page 492 U. S. 556 matter, would a requirement that a pregnant woman memorize and
recite today's plurality opinion before seeking an abortion.

															The plurality pretends that Roe survives, explaining
that the facts of this case differ from those in Roe: here, Missouri has chosen to assert its interest in potential life
only at the point of viability, whereas, in Roe, Texas had
asserted that interest from the point of conception, criminalizing
all abortions except where the life of the mother was at stake. Ante at 492 U. S. 521 .
This, of course, is a distinction without a difference. The
plurality repudiates every principle for which Roe stands;
in good conscience, it cannot possibly believe that Roe lies "undisturbed" merely because this case does not call upon the
Court to reconsider the Texas statute or one like it. If the
Constitution permits a State to enact any statute that reasonably
furthers its interest in potential life, and if that interest
arises as of conception, why would the Texas statute fail to pass
muster? One suspects that the plurality agrees It is impossible to
read the plurality opinion, and especially its final paragraph,
without recognizing its implicit invitation to every State to enact
more and more restrictive abortion laws, and to assert their
interest in potential life as of the moment of conception. All
these laws will satisfy the plurality's nonscrutiny until,
sometime, a new regime of old dissenters and new appointees will
declare what the plurality intends: that Roe is no longer
good law. [ Footnote 2/11 ] Page 492 U. S. 557 D Thus, "not with a bang, but a whimper," the plurality discards a
landmark case of the last generation and casts into darkness the
hopes and visions of every woman in this country who had come to
believe that the Constitution guaranteed her the right to exercise
some control over her unique ability to bear children. The
plurality does so either oblivious or insensitive to the fact that
millions of women, and their families, have ordered their lives
around the right to reproductive choice, and that this right has
become vital to the full participation of women in the economic and
political walks of American life. The plurality would clear the way
once again for government to force upon women the physical labor
and specific and direct medical and psychological harms that may
accompany carrying a fetus to term. The plurality would clear the
way again for the State to conscript a woman's body and to force
upon her a "distressful life and future." Roe, 410 U.S. at 410 U. S.
153 .

															The result, as we know from experience, see Cates &
Rochat, Illegal Abortions in the United States: 1972-1974, 8 Family
Planning Perspectives 86, 92 (1976), would be that, every year,
hundreds of thousands of women, in desperation, would defy the law
and place their health and safety in the unclean and unsympathetic
hands of back-alley abortionists, or they would attempt to perform
abortions upon themselves, Page 492 U. S. 558 with disastrous results. Every year, many women, especially poor
and minority women, would die or suffer debilitating physical
trauma, all in the name of enforced morality or religious dictates
or lack of compassion, as it may be.

															Of the aspirations and settled understandings of American women,
of the inevitable and brutal consequences of what it is doing, the
tough-approach plurality utters not a word. This silence is
callous. It is also profoundly destructive of this Court as an
institution. To overturn a constitutional decision is a rare and
grave undertaking. To overturn a constitutional decision that
secured a fundamental personal liberty to millions of persons would
be unprecedented in our 200 years of constitutional history.
Although the doctrine of stare decisis applies with
somewhat diminished force in constitutional cases generally, ante at 492 U. S. 518 ,
even in ordinary constitutional cases, "any departure from . . . stare decisis demands special justification." Arizona
v. Rumsey, 467 U. S. 203 , 467 U. S. 212 (1984). See also Vasquez v. Hillery, 474 U.
S. 254 , 474 U. S. 266 (1986) ("[T]he careful observer will discern that any detours from
the straight path of stare decisis in our past have
occurred for articulable reasons, and only when the Court has felt
obliged to bring its opinions into agreement with experience
and with facts newly ascertained,'" quoting Burnet v. Coronado
Oil & Gas Co., 285 U. S. 393 , 285 U. S. 412 (1932) (Brandeis, J., dissenting)). This requirement of
justification applies with unique force where, as here, the Court's
abrogation of precedent would destroy people's firm belief, based
on past decisions of this Court, that they possess an unabridgeable
right to undertake certain conduct. [ Footnote 2/12 ] Page 492 U. S. 559 As discussed at perhaps too great length above, the plurality
makes no serious attempt to carry "the heavy burden of persuading .
. . that changes in society or in the law dictate" the abandonment
of Roe and its numerous progeny, Vasquez, 474
U.S. at 474 U. S. 266 ,
much less the greater burden of explaining the abrogation of a
fundamental personal freedom. Instead, the plurality pretends that
it leaves Roe standing, and refuses even to discuss the
real issue underlying this case: whether the Constitution includes
an unenumerated right to privacy that encompasses a woman's right
to decide whether to terminate a pregnancy. To the extent that the
plurality does criticize the Roe framework, these
criticisms are pure ipse dixit. This comes at a cost. The doctrine of stare decisis "permits society to presume that bedrock principles are founded
in the law, rather than in the proclivities of individuals, and
thereby contributes to the integrity of our constitutional system
of government, both in appearance and in fact."

															474 U.S. at 474 U. S.
265 -266. Today's decision involves the most politically
divisive domestic legal issue of our time. By refusing to explain
or to justify its proposed revolutionary revision in the law of
abortion, and by refusing to abide not only by our precedents, but
also by our canons for reconsidering those precedents, the
plurality invites charges of cowardice and Page 492 U. S. 560 illegitimacy to our door. I cannot say that these would be
undeserved. II For today, at least, the law of abortion stands undisturbed. For
today, the women of this Nation still retain the liberty to control
their destinies. But the signs are evident and very ominous, and a
chill wind blows.

															[ Footnote 2/1 ]

															Contrary to the Court, I do not see how the preamble, § 1.205,
realistically may be construed as "abortion-neutral." It declares
that "[t]he life of each human being begins at conception" and that
"[u]nborn children have protectable interests in life, health, and
wellbeing." Mo.Rev.Stat. §§ 1.205.1(1) and (2) (1986). By the
preamble's specific terms, these declarations apply to all of
Missouri's laws which, in turn, are to be interpreted to protect
the rights of the unborn to the fullest extent possible under the
Constitution of the United States and the decisions of this Court.
§ 1.205.2. As the Court of Appeals concluded, the Missouri
Legislature "intended its abortion regulations to be understood
against the backdrop of its theory of life." 851 F.2d 1071, 1076
(CA8 1988). I note the Solicitor General's acknowledgment that this
backdrop places

															"a burden of uncertain scope on the performance of abortions by
supplying a general principle that would fill in whatever
interstices may be present in existing abortion precedents."

															Brief for United States as Amicus Curiae on behalf of
appellants 8-9, n. 5.

															In my view, a State may not expand indefinitely the scope of its
abortion regulations by creating interests in fetal life that are
limited solely by reference to the decisional law of this Court.
Such a statutory scheme, whose scope is dependent on the uncertain
and disputed limits of our holdings, will have the unconstitutional
effect of chilling the exercise of a woman's right to terminate a
pregnancy and of burdening the freedom of health professionals to
provide abortion services. In this case, moreover, because the
preamble defines fetal life as beginning upon "the fertilization of
the ovum of a female by a sperm of a male," § 188.015(3), the
provision also unconstitutionally burdens the use of contraceptive
devices, such as the IUD and the "morning after" pill, which may
operate to prevent pregnancy only after conception as defined in
the statute. See Brief for Association of Reproductive
Health Professionals et al. as Amici Curiae 30-39.

															The Court upholds §§ 188.210 and 188.215 on the ground that the
constitutionality of these provisions follows from our holdings in 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). There were strong dissents in all those
cases.

															Whatever one may think of Maher, Poelker, and Harris, however, they most certainly do not control this
case, where the State not only has withdrawn from the business of
abortion, but has taken affirmative steps to assure that abortions
are not performed by private physicians in private institutions.
Specifically, by defining "public facility" as

															"any public institution, public facility, public equipment, or
any physical asset owned, leased, or controlled by this state or
any agency or political subdivisions thereof,"

															§ 188.200, the Missouri statute prohibits the performance of
abortions in institutions that, in all pertinent respects, are
private, yet are located on property owned, leased, or controlled
by the government. Thus, under the statute, no abortion may be
performed at Truman Medical Center in Kansas City -- where, in
1985, 97 percent of all Missouri hospital abortions at 16 weeks or
later were performed -- even though the Center is a private
hospital, staffed primarily by private doctors, and administered by
a private corporation: the Center is located on ground leased from
a political subdivision of the State.

															The sweeping scope of Missouri's "public facility" provision
sharply distinguishes this case from Maher, Poelker, and Harris. In one of those cases, it was said:

															"The State may have made childbirth a more attractive
alternative . . . but it . . . imposed no restriction on access to
abortions that was not already there." Maher, 432 U.S. at 432 U. S. 474 .
Missouri's public facility ban, by contrast, goes far beyond merely
offering incentives in favor of childbirth (as in Maher and Harris ), or a straightforward disassociation of
state-owned institutions and personnel from abortion services (as
in Poelker ). Here, by defining as "public" every health
care institution with some connection to the State, no matter how
attenuated, Missouri has brought to bear the full force of its
economic power and control over essential facilities to discourage
its citizens from exercising their constitutional rights, even
where the State itself could never be understood as authorizing,
supporting, or having any other positive association with the
performance of an abortion. See R. Dworkin, The Great
Abortion Case, New York Review of Books, June 29, 1989, p. 49.

															The difference is critical. Even if the State may decline to
subsidize or to participate in the exercise of a woman's right to
terminate a pregnancy, and even if a State may pursue its own
abortion policies in distributing public benefits, it may not
affirmatively constrict the availability of abortions by defining
as "public" that which in all meaningful respects is private. With
the certain knowledge that a substantial percentage of private
health care providers will fall under the public facility ban, see Brief for National Association of Public Hospitals as Amicus Curiae 10-11, Missouri does not "leav[e] a pregnant
woman with the same choices as if the State had chosen not to
operate any public hospitals at all," ante at 492 U. S. 509 ;
rather, the public facility ban leaves the pregnant woman with far
fewer choices, or, for those too sick or too poor to travel,
perhaps no choice at all. This aggressive and shameful infringement
on the right of women to obtain abortions in consultation with
their chosen physicians, unsupported by any state interest, much
less a compelling one, violates the command of Roe. Indeed, JUSTICE O'CONNOR appears to recognize the constitutional
difficulties presented by Missouri's "public facilities" ban, and
rejects respondents' "facial" challenge to the provisions on the
ground that a facial challenge cannot succeed where, as here, at
least some applications of the challenged law are constitutional. Ante at 492 U. S.
523 -524. While I disagree with this approach, JUSTICE
O'CONNOR's writing explicitly leaves open the possibility that some
applications of the "public facilities" ban may be
unconstitutional, regardless of Maher, Poelker, and Harris. I concur in 492 U. S. holding that respondents' challenge to § 188.205 is moot, although
I note that the constitutionality of this provision might become
the subject of relitigation between these parties should the
Supreme Court of Missouri adopt an interpretation of the provision
that differs from the one accepted here. See Deakins v.
Monaghan, 484 U. S. 193 , 484 U. S. 201 ,
n. 5 (1988).

															[ Footnote 2/2 ]

															I consider irrefutable JUSTICE STEVENS' discussion of this
interpretive point. See post at 492 U. S.
560 -563.

															[ Footnote 2/3 ]

															The District Court found that "the only method to evaluate
[fetal] lung maturity is by amniocentesis," a procedure that
"imposes additional significant health risks for both the pregnant
woman and the fetus." 662 F.
Supp. 407 , 422 (WD Mo.1987). Yet the medical literature
establishes that to require amniocentesis for all abortions after
20 weeks would be contrary to sound medical practice and, moreover,
would be useless for the purpose of determining lung maturity until
no earlier than between 28 and 30 weeks gestational age. Ibid.;
see also Brief for American Medical Association et
al. as Amici Curiae 41. Thus, were § 188.029 read to
require a finding of lung maturity, it would require physicians to
perform a highly intrusive procedure of risk that would yield no
result relevant to the question of viability.

															[ Footnote 2/4 ]

															I also agree with the Court of Appeals, 851 F.2d at 1074-1075,
that, as written, § 188.029 is contrary to this Court's decision in Colautti v. Franklin, 439 U. S. 379 , 439 U. S.
388 -389 (1979).

															[ Footnote 2/5 ]

															The plurality never states precisely its construction of §
188.029. I base my synopsis of the plurality's views mainly on its
assertion that the entire provision must be read in light of its
requirement that the physician act only in accordance with
reasonable professional judgment, and that the provision imposes no
requirement that a physician perform irrelevant or dangerous tests. Ante at 492 U. S.
514 -515. To the extent that the plurality may be reading
the provision to require tests other than those that a doctor,
exercising reasonable professional judgment, would deem necessary
to a finding of viability, the provision bears no rational relation
to a legitimate governmental interest, and cannot stand.

															[ Footnote 2/6 ]

															As convincingly demonstrated by JUSTICE O'CONNOR, ante at 492 U. S.
527 -531, the cases cited by the plurality are not to the
contrary. As noted by the plurality, in both Colautti v.
Franklin, 439 U.S. at 388-389, and Planned Parenthood of
Central Mo. v. Danforth, 428 U. S. 52 (1976), we stressed that the determination of viability is a matter
for the judgment of the responsible attending physician. But §
188.029, at least as construed by the plurality, is consistent with
this requirement. The provision does nothing to remove the
determination of viability from the purview of the attending
physician; it merely instructs the physician to make a finding of
viability using tests to determine gestational age, weight, and
lung maturity when such tests are feasible and medically
appropriate.

															I also see no conflict with the Court's holding in Akron v.
Akron Center for Reproductive Health, Inc., 462 U.
S. 416 (1983), that the State may not impose "a heavy, and unnecessary, burden on women's access to a relatively
inexpensive, otherwise accessible, and safe abortion procedure." Id. at 462 U. S. 438 (emphasis added). In Akron, we invalidated a city
ordinance requiring that all second-trimester abortions be
performed in acute-care hospitals on the ground that such a
requirement was not medically necessary, and would double the cost
of abortions. Id. at 462 U. S.
434 -439. By contrast, the viability determination at
issue in this case (as read by the plurality), is necessary to the
effectuation of the State's compelling interest in the potential
human life of viable fetuses, and applies not to all
second-trimester abortions, but instead only to that small
percentage of abortions performed on fetuses estimated to be of
more than 20 weeks gestational age.

															[ Footnote 2/7 ]

															The plurality, ignoring all of the aforementioned cases except Griswold, responds that this case does not require
consideration of the "great issues" underlying this case because Griswold, "unlike Roe, did not purport to adopt a
whole framework . . . to govern the cases in which the asserted
liberty interest would apply." Ante at 492 U. S. 520 .
This distinction is highly ironic. The Court in Roe adopted the framework of which the plurality complains as a
mechanism necessary to give effect both to the constitutional
rights of the pregnant woman and to the State's significant
interests in maternal health and potential life. Concededly, Griswold does not adopt a framework for determining the
permissible scope of state regulation of contraception. The reason
is simple: in Griswold (and Eisenstadt ), the
Court held that the challenged statute, regulating the use of
medically safe contraception, did not properly serve any significant state interest. Accordingly, the Court had no occasion
to fashion a framework to accommodate a State's interests in
regulating contraception. Surely the plurality is not suggesting
that it would find Roe unobjectionable if the Court had
forgone the framework and, as in the contraception decisions, had
left the State with little or no regulatory authority. The
plurality's focus on the framework is merely an excuse for avoiding
the real issues embedded in this case, and a mask for its hostility
to the constitutional rights that Roe recognized.

															[ Footnote 2/8 ]

															The difference in the Akron and Simopoulos regulatory regimes is stark. The Court noted in Akron that
the city ordinance requiring that all second-trimester abortions be
performed in acute care hospitals undoubtedly would have made the
procurement of legal abortions difficult and often prohibitively
expensive, thereby driving the performance of abortions back
underground where they would not be subject to effective
regulation. Such a requirement obviously did not further the city's
asserted interest in maternal health. 462 U.S. at 462 U. S. 420 ,
n. 1. On the other hand, the Virginia law at issue in Simopoulos, by permitting the performance of abortions in
licensed outpatient clinics as well as hospitals, did not similarly
constrict the availability of legal abortions, and therefore did
not undermine its own stated purpose of protecting maternal
health.

															[ Footnote 2/9 ]

															Notably, neither the plurality nor JUSTICE O'CONNOR advances the
now-familiar catch-phrase criticism of the Roe framework
that, because the point of viability will recede with advances in
medical technology, Roe "is clearly on a collision course
with itself." See Akron, 462 U.S. at 462 U. S. 458 (dissenting opinion). This critique has no medical foundation. As
the medical literature and the amicus briefs filed in this
case conclusively demonstrate, "there is an anatomic threshold'
for fetal viability of about 23-24 weeks of gestation." Brief for
American Medical Association et al. as Amici
Curiae 7. See also Brief for 167 Distinguished
Scientists and Physicians, including 11 Nobel Laureates, as Amici Curiae 8-14. Prior to that time, the crucial organs
are not sufficiently mature to provide the mutually sustaining
functions that are prerequisite to extrauterine survival, or
viability. Moreover, "no technology exists to bridge the
development gap between the three-day embryo culture and the 24th
week of gestation." Fetal Extrauterine Survivability, Report to the
New York State Task Force on Life and the Law 3 (1988). Nor does
the medical community believe that the development of any such
technology is possible in the foreseeable future. Id. at
12. In other words, the threshold of fetal viability is, and will
remain, no different from what it was at the time Roe was
decided. Predictions to the contrary are pure science fiction. See Brief for A Group of American Law Professors as Amicus Curiae 23-25. [ Footnote 2/10 ]

															Writing for the Court in Akron, Justice Powell observed
the same phenomenon, though in hypothetical response to the dissent
in that case:

															"In sum, it appears that the dissent would uphold virtually any
abortion regulation under a rational basis test. It also appears
that even where heightened scrutiny is deemed appropriate, the
dissent would uphold virtually any abortion-inhibiting regulation
because of the State's interest in preserving potential human life.
. . . This analysis is wholly incompatible with the existence of
the fundamental right recognized in Roe v. Wade. "

															462 U.S. at 462 U. S.
420 -421, n. 1.

															[ Footnote 2/11 ]

															The plurality claims that its treatment of Roe, and a
woman's right to decide whether to terminate a pregnancy, "hold[s]
true the balance between that which the Constitution puts beyond
the reach of the democratic process and that which it does not." Ante at 492 U. S. 521 .
This is unadulterated nonsense. The plurality's balance matches a
lead weight (the State's allegedly compelling interest in fetal
life as of the moment of conception) against a feather (a "liberty
interest" of the pregnant woman that the plurality barely mentions,
much less describes). The plurality's balance -- no balance at all
-- places nothing, or virtually nothing, beyond the reach of the
democratic process.

															JUSTICE SCALIA candidly argues that this is all for the best. Ante at 492 U. S. 532 .
I cannot agree.

															"The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts. One's right
to life, liberty, and property . . . may not be submitted to vote;
they depend on the outcome of no elections." West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 638 (1943). In a Nation that cherishes liberty, the ability of a woman
to control the biological operation of her body and to determine
with her responsible physician whether or not to carry a fetus to
term must fall within that limited sphere of individual autonomy
that lies beyond the will or the power of any transient majority.
This Court stands as the ultimate guarantor of that zone of
privacy, regardless of the bitter disputes to which our decisions
may give rise. In Roe, and our numerous cases reaffirming Roe, we did no more than discharge our constitutional
duty.

															[ Footnote 2/12 ] Cf. South Carolina v. Gathers, 490 U.
S. 805 , 490 U. S. 824 (1989) (SCALIA, J., dissenting) ("[T]he respect accorded prior
decisions increases, rather than decreases, with their antiquity,
as the society adjusts itself to their existence and the
surrounding law becomes premised on their validity").

															Moreover, as Justice Powell wrote for the Court in Akron: "There are especially compelling reasons for adhering to stare decisis in applying the principles of Roe v.
Wade. That case was considered with special care. It was first
argued during the 1971 Term, and reargued -- with extensive
briefing -- the following Term. The decision was joined by THE
CHIEF JUSTICE and six other Justices. Since Roe was
decided in January, 1973, the Court repeatedly and consistently has
accepted and applied the basic principle that a woman has a
fundamental right to make the highly personal choice whether or not
to terminate her pregnancy."

															462 U.S. at 462 U. S. 420 ,
n. 1. See, e.g., Planned Parenthood of Central Mo. v.
Danforth, 428 U. S. 52 (1976); Bellotti v. Baird, 428 U.
S. 132 (1976); Beal v. Doe, 432 U.
S. 438 (1977); Maher v. Roe, 432 U.
S. 464 (1977); Colautti v. Franklin, 439 U. S. 379 (1979); Bellotti v. Baird, 443 U.
S. 622 (1979); Harris v. McRae, 448 U.
S. 297 (1980); Akron v. Akron Center for
Reproductive Health, Inc., 462 U. S. 416 (1983); Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U. S. 747 (1986).

															JUSTICE STEVENS, concurring in part and dissenting in part.

															Having joined Part 492 U. S. I
shall not comment on § 188.205 of the Missouri statute. With
respect to the challenged portions of §§ 188.210 and 188.215, I
agree with JUSTICE BLACKMUN, ante at 492 U. S.
539 -541, n. 1 (concurring in part and dissenting in
part), that the record identifies a sufficient number of
unconstitutional applications to support the Court of Appeals'
judgment invalidating those provisions. The reasons why I would
also affirm that court's invalidation of § 188.029, the viability
testing provision, and §§ 1.205.1(1), (2) of the preamble,
[ Footnote 3/1 ] require separate
explanation. I It seems to me that in 492 U. S. the
plurality strains to place a construction on § 188.029 [ Footnote 3/2 ] that enables Page 492 U. S. 561 it to conclude: "[W]e would modify and narrow Roe and
succeeding cases," ante at 492 U. S. 521 .
That statement is ill-advised, because there is no need to modify
even slightly the holdings of prior cases in order to uphold §
188.029. For the most plausible nonliteral construction, as both
JUSTICE BLACKMUN, ante at 492 U. S.
542 -544 (concurring in part and dissenting in part), and
JUSTICE O'CONNOR, ante at 492 U. S.
525 -531 (concurring in part and concurring in judgment),
have demonstrated, is constitutional and entirely consistent with
our precedents.

															I am unable to accept JUSTICE O'CONNOR's construction of the
second sentence in § 188.029, however, because I believe it is
foreclosed by two controlling principles of statutory
interpretation. First, it is our settled practice to accept

															"the interpretation of state law in which the District Court and
the Court of Appeals have concurred even if an examination of the
state law issue without such guidance might have justified a
different conclusion." Bishop v. Wood, 426 U. S. 341 , 426 U. S. 346 (1976). [ Footnote 3/3 ] Second,

															"[t]he fact that a particular application of the clear terms of
a statute might be unconstitutional does not provide us with a
justification for ignoring the plain meaning of the statute." Public Citizen v. Department of Justice, 491 U.
S. 440 , 491 U. S. 481 (1989) (KENNEDY, J., concurring Page 492 U. S. 562 in judgment). [ Footnote 3/4 ] In
this case, I agree with the Court of Appeals, 851 F.2d 1071,
1074-1075 (CA8 1988), and the District Court, 662 F.
Supp. 407 , 423 (WD Mo.1987), that the meaning of the second
sentence of § 188.029 is too plain to be ignored. The sentence
twice uses the mandatory term "shall," and contains no qualifying
language. If it is implicitly limited to tests that are useful in
determining viability, it adds nothing to the requirement imposed
by the preceding sentence.

															My interpretation of the plain language is supported by the
structure of the statute as a whole, particularly the preamble,
which "finds" that life "begins at conception" and further commands
that state laws shall be construed to provide the maximum
protection to "the unborn child at every stage of development."
Mo.Rev.Stat. §§ 1.205.1(1), 1.205.2 (1986). I agree with the
District Court that "[o]bviously, the purpose of this law is to
protect the potential life of the fetus, rather than to safeguard
maternal health." 662 F. Supp. at 420. A literal reading of the
statute tends to accomplish that goal. Thus it is not
"incongruous," ante at 492 U. S. 515 ,
to assume that the Missouri Legislature was trying to protect the
potential human life of nonviable fetuses by making the abortion
decision more costly. [ Footnote
3/5 ] On the contrary, I am satisfied that the Court of Appeals,
as well as the District Court, correctly concluded that the
Missouri Legislature meant exactly what it said in the second
sentence of § 188.029. I am also satisfied, Page 492 U. S. 563 for the reasons stated by JUSTICE BLACKMUN, that the testing
provision is manifestly unconstitutional under Williamson v.
Lee Optical Co., 348 U. S. 483 (1955),"'irrespective of the Roe [v. Wade, 410 U.
S. 113 (1973),] framework." Ante at 492 U. S. 544 (concurring in part and dissenting in part). II The Missouri statute defines "conception" as "the fertilization
of the ovum of a female by a sperm of a male," Mo.Rev.Stat. §
188.015(3) (1986), even though standard medical texts equate
"conception" with implantation in the uterus, occurring about six
days after fertilization. [ Footnote
3/6 ] Missouri's declaration therefore implies regulation not
only of previability abortions, but also of common forms of
contraception such as the IUD and the morning-after pill. [ Footnote 3/7 ] Because the preamble, read in
context, threatens serious encroachments upon the liberty of the
pregnant woman and the health professional, I am persuaded that
these plaintiffs, appellees before us, have Page 492 U. S. 564 standing to challenge its constitutionality. Accord, 851 F.2d at 1075-1076.

															To the extent that the Missouri statute interferes with
contraceptive choices, I have no doubt that it is unconstitutional
under the Court's holdings in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U.
S. 438 (1972); and Carey v. Population Services
International, 431 U. S. 678 (1977). The place of Griswold in the mosaic of decisions
defining a woman's liberty interest was accurately stated by
Justice Stewart in his concurring opinion in Roe v. Wade, 410 U. S. 113 , 410 U. S.
167 -170 (1973):

															"[I]n Griswold v. Connecticut, 381 U. S.
479 , the Court held a Connecticut birth control law
unconstitutional. In view of what had been so recently said in \[Ferguson v.\] Skrupa , [ 372 U.S.
726 (1963),] the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process
Clause of the Fourteenth Amendment as the ground for decision. Yet
the Connecticut law did not violate any provision of the Bill of
Rights, nor any other specific provision of the Constitution. So it
was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a
holding that the Connecticut statute substantively invaded the
'liberty' that is protected by the Due Process Clause of the
Fourteenth Amendment. As so understood, Griswold stands as
one in a long line of pre- Skrupa cases decided under the
doctrine of substantive due process, and I now accept it as
such."

															" * * * *" "Several decisions of this Court make clear that freedom of
personal choice in matters of marriage and family life is one of
the liberties protected by the Due Process Clause of the Fourteenth
Amendment. Loving v. Virginia, 388 U. S. 1 , 388 U. S. 12 [(1967)]; Griswold v. Connecticut, supra; 268 U. S. Society of
Sisters, [ 268 U.S.
510 (1925)]; Meyer v. Nebraska , [ 262 U.S.
390 (1923)]. See also Page 492 U. S. 565 Prince v. Massachusetts, 321 U. S.
158 , 321 U. S. 166 [(1944)]; Skinner v. Oklahoma, 316 U. S. 535 , 316 U. S.
541 [(1942)]. As recently as last Term, in Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S.
453 , we recognized"

															"the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or
beget a child."

															"That right necessarily includes the right of a woman to decide
whether or not to terminate her pregnancy."

															"Certainly the interests of a woman in giving of her physical
and emotional self during pregnancy and the interests that will be
affected throughout her life by the birth and raising of a child
are of a far greater degree of significance and personal intimacy
than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U. S.
510 (1925), or the right to teach a foreign language
protected in Meyer v. Nebraska, 262 U. S.
390 (1923)."

															" Abele v. Markle, 351 F.
Supp. 224 , 227 (Conn.1972)."

															"Clearly, therefore, the Court today is correct in holding that
the right asserted by Jane Roe is embraced within the personal
liberty protected by the Due Process Clause of the Fourteenth
Amendment."

															(Emphasis in original; footnotes omitted.) [ Footnote 3/8 ]

															One might argue that the Griswold holding applies to
devices "preventing conception," 381 U.S. at 381 U. S. 480 -- that is, fertilization -- but not to those preventing
implantation, and therefore, that Griswold does not
protect a woman's choice to use an IUD or take a morning-after
pill. There is unquestionably Page 492 U. S. 566 a theological basis for such an argument, [ Footnote 3/9 ] just as there was unquestionably a
theological basis for the Connecticut statute that the Court
invalidated in Griswold. Our jurisprudence, however, has
consistently required a secular basis for valid legislation. See, e.g., Stone v. Graham, 449 U. S.
39 , 449 U. S. 40 (1980) (per curiam). [ Footnote
3/10 ] Because I am not aware of any secular basis for
differentiating between contraceptive procedures that are effective
immediately before and those that are effective immediately after
fertilization, I believe it inescapably follows that the preamble
to the Missouri statute is invalid under Griswold and its
progeny.

															Indeed, I am persuaded that the absence of any secular purpose
for the legislative declarations that life begins at conception and
that conception occurs at fertilization makes the relevant portion
of the preamble invalid under the Establishment Clause of the First
Amendment to the Federal Constitution. This conclusion does not,
and could not, rest on the fact that the statement happens to
coincide with the tenets of certain religions, see McGowan v.
Maryland, 366 U. S. 420 , 366 U. S. 442 (1961); Harris v. McRae, 448 U. S. 297 , 448 U. S.
319 -320 (1980), or on the fact that the legislators who
voted to enact it may have been motivated by religious
considerations, see Washington v. Davis, 426 U.
S. 229 , 426 U. S. 253 (1976) (STEVENS, J., concurring). Rather, it rests on the fact that
the preamble, an unequivocal endorsement of a religious tenet of
some, but by no means all, Christian faiths, [ Footnote 3/11 ] serves no identifiable Page 492 U. S. 567 secular purpose. That fact alone compels a conclusion that the
statute violates the Establishment Clause. [ Footnote 3/12 ] Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 56 (1985).

															My concern can best be explained by reference to the position on
this issue that was widely accepted by the leaders of the Roman
Catholic Church for many years. The position is summarized in a
report, entitled "Catholic Teaching On Abortion," prepared by the
Congressional Research Service of the Library of Congress. It
states in part:

															"The disagreement over the status of the unformed as against the
formed fetus was crucial for Christian teaching on the soul. It was
widely held that the soul was not present until the formation of
the fetus 40 or 80 days after conception, for males and females
respectively. Thus, abortion of the 'unformed' or 'inanimate' fetus
(from anima, soul) was something less than true homicide,
rather a form of anticipatory or quasi-homicide. This view received
its definitive treatment in St. Thomas Aquinas, and became for a
time the dominant interpretation m the Latin Church."

															" * * * *" "For St. Thomas, as for mediaeval Christendom generally, there
is a lapse of time -- approximately 40 to 80 days -- after
conception and before the soul's infusion. . . ."

															"For St. Thomas, 'seed and what is not seed is determined by
sensation and movement.' What is destroyed in abortion of the
unformed fetus is seed, not man. This distinction received its most
careful analysis in St. Thomas. It was the general belief of
Christendom, reflected, Page 492 U. S. 568 for example, in the Council of Trent (1545-1563), which
restricted penalties for homicide to abortion of an animated fetus
only."

															C. Whittier, Catholic Teaching on Abortion: Its Origin and Later
Development (1981), reprinted in Brief for Americans United for
Separation of Church and State as Amicus Curiae 13a, 17a
(quoting In octo libros politicorum 7.12, attributed to
St. Thomas Aquinas). If the views of St. Thomas were held as widely
today as they were in the Middle Ages, and if a state legislature
were to enact a statute prefaced with a "finding" that female life
begins 80 days after conception and male life begins 40 days after
conception, I have no doubt that this Court would promptly conclude
that such an endorsement of a particular religious tenet is
violative of the Establishment Clause.

															In my opinion the difference between that hypothetical statute
and Missouri's preamble reflects nothing more than a difference in
theological doctrine. The preamble to the Missouri statute endorses
the theological position that there is the same secular interest in
preserving the life of a fetus during the first 40 or 80 days of
pregnancy as there is after viability -- indeed, after the time
when the fetus has become a "person" with legal rights protected by
the Constitution. [ Footnote 3/13 ]
To sustain that position as a matter of law, I believe Missouri has
the burden of identifying the secular interests that differentiate
the first 40 days of pregnancy from the period immediately Page 492 U. S. 569 before or after fertilization when, as Griswold and
related cases establish, the Constitution allows the use of
contraceptive procedures to prevent potential life from developing
into full personhood. Focusing our attention on the first several
weeks of pregnancy is especially appropriate, because that is the
period when the vast majority of abortions are actually
performed.

															As a secular matter, there is an obvious difference between the
state interest in protecting the freshly fertilized egg and the
state interest in protecting a 9-month-gestated, fully sentient
fetus on the eve of birth. There can be no interest in protecting
the newly fertilized egg from physical pain or mental anguish,
because the capacity for such suffering does not yet exist;
respecting a developed fetus, however, that interest is valid. In
fact, if one prescinds the theological concept of ensoulment -- or
one accepts St. Thomas Aquinas' view that ensoulment does not occur
for at least 40 days -- a State has no greater secular interest in
protecting the potential life of an embryo that is still "seed"
than in protecting the potential life of a sperm or an unfertilized
ovum.

															There have been times in history when military and economic
interests would have been served by an increase in population. No
one argues today, however, that Missouri can assert a societal
interest in increasing its population as its secular reason for
fostering potential life. Indeed, our national policy, as reflected
in legislation the Court upheld last Term, is to prevent the
potential life that is produced by "pregnancy and childbirth among
unmarried adolescents." Bowen v. Kendrick, 487 U.
S. 589 , 487 U. S. 593 (1988); accord, id. at 487 U. S. 602 .
If the secular analysis were based on a strict balancing of fiscal
costs and benefits, the economic costs of unlimited childbearing
would outweigh those of abortion. There is, of course, an important
and unquestionably valid secular interest in "protecting a young
pregnant woman from the consequences of an incorrect decision," Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 , 428 U. S. 102 (1976) Page 492 U. S. 570 (STEVENS, J., concurring in part and dissenting in part).
Although that interest is served by a requirement that the woman
receive medical and, in appropriate circumstances, parental,
advice, [ Footnote 3/14 ] it does
not justify the state legislature's official endorsement of the
theological tenet embodied in §§ 1.205.1(1), (2).

															The State's suggestion that the "finding" in the preamble to its
abortion statute is, in effect, an amendment to its tort, property,
and criminal laws is not persuasive. The Court of Appeals concluded
that the preamble "is simply an impermissible state adoption of a
theory of when life begins to justify its abortion regulations."
851 F.2d at 1076. Supporting that construction is the state
constitutional prohibition against legislative enactments
pertaining to more than one subject matter. Mo.Const., Art. 3, §
23. See In re Ray, 83 B.R. 670 (Bkrtcy Ct., ED Mo.1988); Berry v. Majestic Milling Co., 223 S.W. 738 (Mo.1920).
Moreover, none of the tort, property, or criminal law cases cited
by the State was either based on or buttressed by a theological
answer to the question of when life begins. Rather, the Missouri
courts, as well as a number of other state courts, had already
concluded that a "fetus is a person,' `minor,' or `minor child'
within the meaning of their particular wrongful death
statutes." Page 492 U. S.
571 O'Grady v. Brown, 654 S.W.2d
904 , 910 (Mo.1983) (en banc). [ Footnote 3/15 ] Bolstering my conclusion that the preamble violates the First
Amendment is the fact that the intensely divisive character of much
of the national debate over the abortion issue reflects the deeply
held religious convictions of many participants in the debate.
[ Footnote 3/16 ] The Missouri
Legislature may not inject its endorsement of a particular
religious tradition into this debate, for "[t]he Establishment
Clause does not allow public bodies to foment such disagreement." See County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, post at 492 U. S. 651 (STEVENS, J., concurring in part and dissenting in part).

															In my opinion, the preamble to the Missouri statute is
unconstitutional for two reasons. To the extent that it has
substantive impact on the freedom to use contraceptive procedures,
it is inconsistent with the central holding in Griswold. To the extent that it merely makes "legislative findings without
operative effect," as the State argues, Brief for Appellants 22, it
violates the Establishment Clause of the First Page 492 U. S. 572 Amendment. Contrary to the theological "finding" of the Missouri
Legislature, a woman's constitutionally protected liberty
encompasses the right to act on her own belief that -- to
paraphrase St. Thomas Aquinas -- until a seed has acquired the
powers of sensation and movement, the life of a human being has not
yet begun. [ Footnote 3/17 ]

															[ Footnote 3/1 ]

															The State prefers to refer to subsections (1) and (2) of §
1.205.1 as "prefatory statements with no substantive effect." Brief
for Appellants 9; see id. at 21; see also 851
F.2d 1071, 1076 (CA8 1988). It is true that § 1.205 is codified in
Chapter 1, Laws in Force and Construction of Statutes, of Title I,
Laws and Statutes, of the Missouri Revised Statutes, while all
other provisions at issue are codified in Chapter 188, Regulation
of Abortions, of Title XII, Public Health and Welfare. But because
§ 1.205 appeared at the beginning of House Bill No. 1596, see
ante at 492 U. S.
500 -501, it is entirely appropriate to consider it as a
preamble relevant to those regulations.

															[ Footnote 3/2 ]

															The testing provision states:

															"188.029. Physician, determination of viability, duties"

															"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
determination 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 gestational age, weight, and lung maturity
of the unborn child and shall enter such findings and determination
of viability in the medical record of the mother."

															Mo.Rev.Stat. § 188.029 (1986).

															[ Footnote 3/3 ] See also United States v. Durham Lumber Co., 363 U. S. 522 , 363 U. S.
526 -527 (1960); Propper v. Clark, 337 U.
S. 472 , 337 U. S.
486 -487 (1949); Hillsborough v. Cromwell, 326 U. S. 620 , 326 U. S. 630 (1946); Huddleston v. Dwyer, 322 U.
S. 232 , 322 U. S. 237 (1944); MacGregor v. State Mutual Life Ins. Co., 315 U. S. 280 , 315 U. S. 281 (1942) (per curiam).

															[ Footnote 3/4 ]

															We have stated that we will interpret a federal statute to avoid
serious constitutional problems if "a reasonable alternative
interpretation poses no constitutional question," Gomez v.
United States, 490 U. S. 858 , 490 U. S. 864 (1989), or if "it is fairly possible to interpret the statute in a
manner that renders it constitutionally valid," Communications
Workers v. Beck, 487 U. S. 735 , 487 U. S. 762 (1988), or "unless such construction is plainly contrary to the
intent of Congress," Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building and Construction Trades Council, 485 U.
S. 568 , 485 U. S. 575 (1988).

															[ Footnote 3/5 ]

															As with the testing provision, the plurality opts for a
construction of this statute that conflicts with those of the Court
of Appeals, 851 F.2d at 1076-1077, and the District Court, 662 F.
Supp. 407 , 413 (WD Mo.1987).

															[ Footnote 3/6 ]

															The fertilized egg remains in the woman's Fallopian tube for 72
hours, then travels to the uterus' cavity, where cell division
continues for another 72 hours before implantation in the uterine
wall. D. Mishell & V. Davajan, Infertility, Contraception and
Reproductive Endocrinology 109-110 (2d ed.1986); see also Brief for Association of Reproductive Health Professionals et
al. as Amici Curiae 31-32 (ARHP Brief) (citing, inter alia, J. Pritchard, P. MacDonald, & N. Gant,
Williams Obstetrics 88-91 (17th ed.1985)). "[O]nly 50 per cent of
fertilized ova ultimately become implanted." ARHP Brief 32, n. 25
(citing Post Coital Contraception, The Lancet 856 (Apr. 16,
1983)).

															[ Footnote 3/7 ]

															An intrauterine device, commonly called an IUD, "works primarily
by preventing a fertilized egg from implanting." Burnhill,
Intrauterine Contraception, in Fertility Control 271, 280 (S.
Corson, R. Derman, & L. Tyrer eds.1985). See also 21
CFR § 801.427, p. 32 (1988); ARHP Brief 34-35. Other contraceptive
methods that may prevent implantation include "morning-after
pills," high-dose estrogen pills taken after intercourse,
particularly in cases of rape, ARHP Brief 33, and the French RU
486, a pill that works "during the indeterminate period between
contraception and abortion," id. at 37. Low-1evel estrogen
"combined" pills -- a version of the ordinary, daily ingested birth
control pill -- also may prevent the fertilized egg from reaching
the uterine wall and implanting. Id. at 35-36.

															[ Footnote 3/8 ]

															The contrast between Justice Stewart's careful explication that
our abortion precedent flowed naturally from a stream of
substantive due process cases and JUSTICE SCALIA's notion that our
abortion law was "constructed overnight in Roe v. Wade, " ante at 492 U. S. 537 (concurring in part and concurring in judgment) is remarkable.

															[ Footnote 3/9 ]

															Several amici state that the "sanctity of human life
from conception and opposition to abortion are, in fact, sincere
and deeply held religious beliefs," Brief for Lutheran
Church-Missouri Synod et al. as Amici Curiae 20
(on behalf of 49 "church denominations"); see Brief for
Holy Orthodox Church as Amicus Curiae 12-14.

															[ Footnote 3/10 ]

															The dissent in Stone did not dispute this proposition;
rather, it argued that posting the Ten Commandments on schoolroom
walls has a secular purpose. 449 U.S. at 449 U. S. 43 -46
(REHNQUIST, J., dissenting).

															[ Footnote 3/11 ] See, e.g., Brief for Catholics for a Free Choice et
al. as Amici Curiae 5 ("There is no constant teaching
in Catholic theology on the commencement of personhood").

															[ Footnote 3/12 ]

															Pointing to the lack of consensus about life's onset among
experts in medicine, philosophy, and theology, the Court in Roe
v. Wade, 410 U. S. 113 , 410 U. S. 158 , 410 U. S. 162 (1973), established that the Constitution does not permit a State
to adopt a theory of life that overrides a pregnant woman's rights. Accord, Akron v. Akron Center for Reproductive Health,
Inc., 462 U. S. 416 , 462 U. S. 444 (1983). The constitutional violation is doubly grave if, as here,
the only basis for the State's "finding" is nonsecular.

															[ Footnote 3/13 ]

															No Member of this Court has ever questioned the holding in Roe, 410 U.S. at 410 U. S.
156 -159, that a fetus is not a "person" within the
meaning of the Fourteenth Amendment. Even the dissenters in Roe implicitly endorsed that holding by arguing that state
legislatures should decide whether to prohibit or to authorize
abortions. See id. at 410 U. S. 177 (REHNQUIST, J., dissenting) (arguing that the Fourteenth Amendment
did not "withdraw from the States the power to legislate with
respect to this matter"); Doe v. Bolton, 410 U.
S. 179 , 410 U. S. 222 (1973) (WHITE, J., dissenting jointly in Doe and Roe ). By characterizing the basic question as "a political
issue," see ante at 492 U. S. 535 (concurring in part and concurring in judgment), JUSTICE SCALIA
likewise implicitly accepts this holding.

															[ Footnote 3/14 ]

															"The Court recognizes that the State may insist that the
decision not be made without the benefit of medical advice. But
since the most significant consequences of the decision are not
medical in character, it would seem to me that the State may, with
equal legitimacy, insist that the decision be made only after other
appropriate counsel has been had as well. Whatever choice a
pregnant young woman makes -- to marry, to abort, to bear her child
out of wedlock -- the consequences of her decision may have a
profound impact on her entire future life. A legislative
determination that such a choice will be made more wisely in most
cases if the advice and moral support of a parent play a part in
the decisionmaking process is surely not irrational. Moreover, it
is perfectly clear that the parental consent requirement will
necessarily involve a parent in the decisional process." Planned Parenthood of Central Mo. v. Danforth, 428 U.S.
at 428 U. S. 103 (STEVENS, J., concurring in part and dissenting in part).

															[ Footnote 3/15 ]

															The other examples cited by the State are statutes providing
that unborn children are to be treated as though born within the
lifetime of the decedent, see Uniform Probate Code § 2-108
(1969), and statutes imposing criminal sanctions in the nature of
manslaughter for the killing of a viable fetus or unborn quick
child, see, e.g., Ark.Stat.Ann. § 41-2223 (1947). None of
the cited statutes included any "finding" on the theological
question of when life begins.

															[ Footnote 3/16 ]

															No fewer than 67 religious organizations submitted their views
as amici curiae on either side of this case. Amici briefs on both sides, moreover, frankly discuss the
relation between the abortion controversy and religion. See
generally, e.g., Brief for Agudath Israel of America as Amicus Curiae, Brief for Americans United for Separation
of Church and State et al. as Amici Curiae, Brief
for Catholics for a Free Choice et al. as Amici
Curiae, Brief for Holy Orthodox Church as Amicus
Curiae, Brief for Lutheran Church-Missouri Synod et
al. as Amici Curiae, Brief for Missouri Catholic
Conference as Amicus Curiae. Cf. Burke, Religion
and Politics in the United States, in Movements and Issues in World
Religions 243, 254-256 (C. Fu & G. Spiegler eds.1987).

															[ Footnote 3/17 ]

															"Just as the right to speak and the right to refrain from
speaking are complementary components of a broader concept of
individual freedom of mind, so also the individual's freedom to
choose his own creed is the counterpart of his right to refrain
from accepting the creed established by the majority. At one time,
it was thought that this right merely proscribed the preference of
one Christian sect over another, but would not require equal
respect for the conscience of the infidel, the atheist, or the
adherent of a non-Christian faith such as Islam or Judaism. But
when the underlying principle has been examined in the crucible of
litigation, the Court has unambiguously concluded that the
individual freedom of conscience protected by the First Amendment
embraces the right to select any religious faith or none at all.
This conclusion derives support not only from the interest in
respecting the individual's freedom of conscience, but also from
the conviction that religious beliefs worthy of respect are the
product of free and voluntary choice by the faithful, and from
recognition of the fact that the political interest in forestalling
intolerance extends beyond intolerance among Christian sects -- or
even intolerance among 'religions' -- to encompass intolerance of
the disbeliever and the uncertain. As Justice Jackson eloquently
stated in West Virginia Board of Education v. Barnette, 319 U. S.
624 , 319 U. S. 642 (1943):"

															" If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe
what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act
their faith therein."

															"The State . . no less than the Congress of the United States,
must respect that basic truth." Wallace v. Jaffree, 472 U. S. 38 , 472 U. S. 52 -55
(1985) (footnotes omitted).