U.S. Supreme Court Planned Parenthood v. Danforth, 428 U.S.
52 (1976) Planned Parenthood of Central
Missouri v. Danforth No. 74-1151 Argued March 23, 1976 Decided July 1, 1976 428 U.S.
52 ast|>* 428 U.S.
52 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF
MISSOURI Syllabus Two Missouri-licensed physicians, one of whom performs abortions
at hospitals and the other of whom supervises abortions at Planned
Parenthood, a not-for-profit corporation, brought suit, along with
that organization, for injunctive and declaratory relief
challenging the constitutionality of the Missouri abortion statute.
The provisions under attack are: § 2(2), defining "viability"
as

															"that stage of fetal development when the life of the unborn
child may be continued indefinitely outside the womb by natural or
artificial life supportive systems;"

															§ 3(2), requiring that, before submitting to an abortion during
the first 12 weeks of pregnancy, a woman must consent in writing to
the procedure and certify that "her consent is informed and freely
given, and is not the result of coercion"; § 3(3), requiring, for
the same period, the written consent of the spouse of a woman
seeking an abortion unless a licensed physician certifies that the
abortion is necessary to preserve the mother's life; § 3(4),
requiring, for the same period, and with the same proviso, the
written consent of a parent or person in loco parentis to
the abortion of an unmarried woman under age 18; § 6(1), requiring
the physician to exercise professional care to preserve the fetus'
life and health, failing which he is deemed guilty of manslaughter
and is liable in an action for damages; § 7, declaring an infant
who survives an attempted abortion not performed to save the
mother's life or health an abandoned ward of the State, and
depriving the mother and a consenting father of parental rights; §
9, prohibiting, after the first 12 weeks of pregnancy, the abortion
procedure of saline amniocentesis as "deleterious to maternal
health"; and §§ 10 and 11, prescribing reporting and
recordkeeping Page 428 U. S. 53 requirements for health facilities and physicians performing
abortions. The District Court ruled that the two physicians had
"obvious standing" to maintain the suit, and that it was therefore
unnecessary to determine if Planned Parenthood also had standing.
On the merits, the court upheld the foregoing provisions with the
exception of § 6(1)'s professional skill requirement, which was
held to be "unconstitutionally overbroad" because it failed to
exclude the pregnancy stage prior to viability. Held: 1. The physician appellants have standing to challenge the
foregoing provisions of the Act with the exception of § 7, the
constitutionality of which the Court declines to decide. Doe v.
Bolton, 410 U. S. 179 . P. 428 U. S. 62 ,
and n. 2.

															2. The definition of viability in § 2(2) does not conflict with
the definition in Roe v. Wade, 410 U.
S. 113 , 410 U. S. 160 , 410 U. S. 163 ,
as the point at which the fetus is "potentially able to live
outside the mother's womb, albeit with artificial aid," and is
presumably capable of "meaningful life outside the mother's womb."
Section 2(2) maintains the flexibility of the term "viability"
recognized in Roe. It is not a proper legislative or
judicial function to fix viability, which is essentially for the
judgment of the responsible attending physician, at a specific
point in the gestation period. Pp. 428 U. S.
63 -65.

															3. The consent provision in § 3(2) is not unconstitutional. The
decision to abort is important and often stressful, and the
awareness of the decision and its significance may be
constitutionally assured by the State to the extent of requiring
the woman's prior written consent. Pp. 428 U. S.
65 -67.

															4. The spousal consent provision in § 3(3), which does not
comport with the standards enunciated in Roe v. Wade,
supra, at 410 U. S.
164 -165, is unconstitutional, since the State cannot

															"'delegate to a spouse a veto power which the [S]tate itself is
absolutely and totally prohibited from exercising during the first
trimester of pregnancy.'"

															Pp. 428 U. S.
67 -72.

															5. The State may not constitutionally impose a blanket parental
consent requirement, such as § 3(4), as a condition for an
unmarried minor's abortion during the first 12 weeks of her
pregnancy for substantially the same reasons as in the case of the
spousal consent provision, there being no significant state
interests, whether to safeguard the family unit and parental
authority or other vise, in conditioning an abortion on the consent
of a parent with respect to the under-18-year-old pregnant minor.
As stressed in Roe, "the abortion decision and its effectuation
must Page 428 U. S. 54 be left to the medical judgment of the pregnant woman's
attending physician." 410 U.S. at 410 U. S. 164 .
Pp. 428 U. S.
72 -75.

															6. Through § 9, the State would prohibit the most commonly used
abortion procedure in the country and one that is safer, with
respect to maternal mortality, than even the continuation of
pregnancy until normal childbirth, and would force pregnancy
terminations by methods more dangerous to the woman's health than
the method outlawed. As so viewed (particularly since another safe
technique, prostaglandin, is not yet available) the outright
legislative proscription of saline amniocentesis fails as a
reasonable protection of maternal health. As an arbitrary
regulation designed to prevent the vast majority of abortions after
the first 12 weeks, it is plainly unconstitutional. Pp. 428 U. S.
75 -79.

															7. The reporting and recordkeeping requirements, which can be
useful to the State's interest in protecting the health of its
female citizens and which may be of medical value, are not
constitutionally offensive in themselves, particularly in view of
reasonable confidentiality and retention provisions. They thus do
not interfere with the abortion decision or the physician-patient
relationship. It is assumed that the provisions will not be
administered in an unduly burdensome way, and that patients will
not be required to execute spousal or parental consent forms in
accordance with invalid provisions of the Act. Pp. 428 U. S.
79 -81.

															8. The first sentence of § 6(1) impermissibly requires a
physician to preserve the fetus' life and health, whatever the
stage of pregnancy. The second sentence, which provides for
criminal and civil liability where a physician fails "to take such
measures to encourage or to sustain the life of the child, and the
death of the child results," does not alter the duty imposed by the
first sentence or limit that duty to pregnancies that have reached
the stage of viability, and since it is inseparably tied to the
first provision, the whole section is invalid. Pp. 428 U. S.
81 -84. 392
F. Supp. 1362 , affirmed in part, reversed in part, and
remanded.

															BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined, in all but
Parts IV-D and IV-E of which STEVENS, J., joined, and in all but
Parts IV-C, IV-D, IV-E, and IV-G of which BURGER, C.J., and WHITE
and REHNQUIST, JJ., joined. STEWART, J., filed a concurring
opinion, in which POWELL, J., joined, post, p. 428 U. S. 89 .
WHITE, J., filed an opinion concurring in part and dissenting in
part, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 428 U. S. 92 .
STEVENS, J., Page 428 U. S. 55 filed an opinion concurring in part and dissenting in part, post, p. 428 U. S.
101 .

															MR. JUSTICE BLACKMUN delivered the opinion of the Court.

															This case is a logical and anticipated corollary to Roe v.
Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U.
S. 179 (1973), for it raises issues secondary to those
that were then before the Court. Indeed, some of the questions now
presented were forecast and reserved in Roe and Doe. 410 U.S. at 410 U. S. 165 n. 67. I After the decisions in Roe and Doe, this Court
remanded for reconsideration a pending Missouri federal case in
which the State's then-existing abortion legislation, Page 428 U. S. 56 Mo.Rev.Stat. §§ 559.100, 542.380, and 563.300 (1969), was under
constitutional challenge. Rodgers v. Danforth, 410 U.S.
949 (1973). A three-judge federal court for the Western District of
Missouri, in an unreported decision, thereafter declared the
challenged Missouri statutes unconstitutional and granted
injunctive relief. On appeal here, that judgment was summarily
affirmed. Danforth v. Rodgers, 414 U.S. 1035 (1973).

															In June, 1974, somewhat more than a year after Roe and Doe had been decided, Missouri's 77th General Assembly, in
its Second Regular Session, enacted House Committee Substitute for
House Bill No. 1211 (hereinafter Act). The legislation was approved
by the Governor on June 14, 1974, and became effective immediately
by reason of an emergency clause contained in § A of the statute.
The Act is set forth in full as the 428 U.S.
52 app|>Appendix to this opinion. It imposes a structure for
the control and regulation of abortions in Missouri during all
stages of pregnancy. II Three days after the Act became effective, the present
litigation was instituted in the United States District Court for
the Eastern District of Missouri. The plaintiffs are Planned
Parenthood of Central Missouri, a not-for-profit Missouri
corporation which maintains a facility in Columbia, Mo., for the
performance of abortions; David Hall, M.D.; and Michael Freiman,
M.D. Doctor Hall is a resident of Columbia, is licensed as a
physician in Missouri, is chairman of the Department and Professor
of Obstetrics and Gynecology at the University of Missouri Medical
School at Columbia, and supervises abortions at the Planned
Parenthood facility. He was described by the three-judge court in
the 1973 case as one of four plaintiffs who were "eminent,
Missouri-licensed obstetricians and gynecologists."
Jurisdictional Page 428 U. S. 57 Statement, App. 7, in Danforth v. Rodgers, No. 73-426,
O.T. 1973. Doctor Freiman is a resident of St. Louis, is licensed
as a physician in Missouri, is an instructor of Clinical Obstetrics
and Gynecology at Washington University Medical School, and
performs abortions at two St. Louis hospitals and at a clinic in
that city.

															The named defendants are the Attorney General of Missouri and
the Circuit Attorney of the city of St. Louis "in his
representative capacity" and "as the representative of the class of
all similar Prosecuting Attorneys of the various counties of the
State of Missouri." Complaint 10.

															The plaintiffs brought the action on their own behalf and,
purportedly,

															"on behalf of the entire class consisting of duly licensed
physicians and surgeons presently performing or desiring to perform
the termination of pregnancies and on behalf of the entire class
consisting of their patients desiring the termination of pregnancy,
all within the State of Missouri." Id. at 9. Plaintiffs sought declaratory relief and also
sought to enjoin enforcement of the Act on the ground, among
others, that certain of its provisions deprived them and their
patients of various constitutional rights: "the right to privacy in
the physician-patient relationship"; the physicians' "right to
practice medicine according to the highest standards of medical
practice"; the female patients' right to determine whether to bear
children; the patients' "right to life due to the inherent risk
involved in childbirth" or in medical procedures alternative to
abortion; the physicians' "right to give and plaintiffs' patients'
right to receive safe and adequate medical advice and treatment
pertaining to the decision of whether to carry a given pregnancy to
term and the method of termination"; the patients' right under the
Eighth Amendment to be free from cruel and unusual punishment "by
forcing Page 428 U. S. 58 and coercing them to bear each pregnancy they conceive"; and, by
being placed "in the position of decision making beset with . . .
inherent possibilities of bias and conflict of interest," the
physician's right to due process of law guaranteed by the
Fourteenth Amendment. Id. at 10-11.

															The particular provisions of the Act that remained under
specific challenge at the end of trial were § 2(2), defining the
term "viability"; § 3(2), requiring from the woman, prior to
submitting to abortion during the first 12 weeks of pregnancy, a
certification in writing that she consents to the procedure and
"that her consent is informed and freely given and is not the
result of coercion"; § 3(3), requiring, for the same period,

															"the written consent of the woman's spouse, unless the abortion
is certified by a licensed physician to be necessary in order to
preserve the life of the mother;"

															§ 3(4), requiring, for the same period,

															"the written consent of one parent or person in loco
parentis of the woman if the woman is unmarried and under the
age of eighteen years, unless the abortion is certified by a
licensed physician as necessary in order to preserve the life of
the mother;"

															§ 6(1), requiring the physician to exercise professional care
"to preserve the life and health of the fetus" and, failing such,
deeming him guilty of manslaughter and making him liable in an
action for damages; § 7, declaring an infant who survives "an
attempted abortion which was not performed to save the life or
health of the mother" to be "an abandoned ward of the state under
the jurisdiction of the juvenile court," and depriving the mother,
and also the father if he consented to the abortion, of parental
rights; § 9, the legislative finding that the method of abortion
known as saline amniocentesis "is deleterious to maternal health,"
and prohibiting that method after the first 12 weeks of pregnancy;
and §§ 10 Page 428 U. S. 59 and 11, imposing reporting and maintenance of record
requirements for health facilities and for physicians who perform
abortions.

															The case was presented to a three-judge District Court convened
pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284. 392 F.
Supp. 1362 (1975). The court ruled that the two physician
plaintiffs had standing, inasmuch as § 6(1) provides that the
physician who fails to exercise the prescribed standard of
professional care due the fetus in the abortion procedure shall be
guilty of manslaughter, and § 14 provides that any person who
performs or aids in the performance of an abortion contrary to the
provisions of the Act shall be guilty of a misdemeanor. 392 F.
Supp. at 1366-1367. Due to this "obvious standing" of the two
physicians, id. at 1367, the court deemed it unnecessary
to determine whether Planned Parenthood also had standing.

															On the issues as to the constitutionality of the several
challenged sections of the Act, the District Court, largely by a
divided vote, ruled that all except the first sentence of § 6(1)
withstood the attack. That sentence was held to be constitutionally
impermissible because it imposed upon the physician the duty to
exercise at all stages of pregnancy "that degree of professional
skill, care and diligence to preserve the life and health of the
fetus" that "would be required . . . to preserve the life and
health of any fetus intended to be born." Inasmuch as this failed
to exclude the stage of pregnancy prior to viability, the provision
was "unconstitutionally overbroad." 392 F. Supp. at 1371.

															One judge concurred in part and dissented in part. Id. at 1374. He agreed with the majority as to the constitutionality of
§§ 2(2), 3(2), 10, and 11, respectively relating to the definition
of "viability," the woman's prior written consent, maintenance of
records, Page 428 U. S. 60 and retention af records. He also agreed with the majority that
§ 6(1) was unconstitutionally overbroad. He dissented from the
majority opinion upholding the constitutionality of §§ 3(3), 3(4),
7, and 9, relating, respectively, to spousal consent, parental
consent, the termination of parental rights, and the proscription
of saline amniocentesis.

															In No. 74-1151, the plaintiffs appeal from that part of the
District Court's judgment upholding sections of the Act as
constitutional and denying injunctive relief against their
application and enforcement. In No. 74-1419, the defendant Attorney
General cross-appeals from that part of the judgment holding § 6(1)
unconstitutional and enjoining enforcement thereof. We granted the
plaintiffs' application for stay of enforcement of the Act pending
appeal. 420 U.S. 918 (1975). Probable jurisdiction of both appeals
thereafter was noted. 423 U.S. 819 (1975).

															For convenience, we shall usually refer to the plaintiffs as
"appellants" and to both named defendants as "appellees." III In Roe v. Wade, the Court concluded that the

															"right of privacy, whether it be founded in the Fourteenth
Amendment's concept of personal liberty and restrictions upon state
action, as we feel it is, or, as the District Court determined, in
the Ninth Amendment's reservation of rights to the people, is broad
enough to encompass a woman's decision whether or not to terminate
her pregnancy."

															410 U.S. at 410 U. S. 153 .
It emphatically rejected, however, the proffered argument

															"that the woman's right is absolute, and that she is entitled to
terminate her pregnancy at whatever time, in whatever way, and for
whatever reason, she alone chooses." Ibid. Instead, Page 428 U. S. 61 this right "must be considered against important state interests
in regulation." Id. at 410 U. S.
154 .

															The Court went on to say that the "pregnant woman cannot be
isolated in her privacy," for she "carries an embryo and, later, a
fetus." Id. at 410 U. S. 159 .
It was therefore

															"reasonable and appropriate for a State to decide that, at some
point in time, another interest, that of health of the mother or
that of potential human life, becomes significantly involved. The
woman's privacy is no longer sole, and any right of privacy she
possesses must be measured accordingly." Ibid. The Court stressed the measure of the State's
interest in "the light of present medical knowledge." Id. at 410 U. S. 163 .
It concluded that the permissibility of state regulation was to be
viewed in three stages:

															"For the stage prior to approximately the end of the first
trimester, the abortion decision and its effectuation must be left
to the medical judgment of the pregnant woman's attending
physician,"

															without interference from the State. Id. at 410 U. S. 164 .
The participation by the attending physician in the abortion
decision, and his responsibility in that decision, thus, were
emphasized. After the first stage, as so described, the State may,
if it chooses, reasonably regulate the abortion procedure to
preserve and protect maternal health. Ibid. Finally, for
the stage subsequent to viability, a point purposefully left
flexible for professional determination, and dependent upon
developing medical skill and technical ability, [ Footnote 1 ] the State may regulate an
abortion to protect the life of the fetus and even may proscribe
abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother. Id. at 410 U. S.
163 -165. Page 428 U. S. 62 IV With the exception specified in n 2, infra, we agree with the District Court that
the physician appellants clearly have standing. This was
established in Doe v. Bolton, 410 U.S. at 410 U. S. 188 .
Like the Georgia statutes challenged in that case,

															"[t]he physician is the one against whom [the Missouri Act]
directly operate[s] in the event he procures an abortion that does
not meet the statutory exceptions and conditions. The physician
appellants, therefore, assert a sufficiently direct threat of
personal detriment. They should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief.
[ Footnote 2 ]" Ibid. Our primary task, then, is to consider each of the Page 428 U. S. 63 challenged provisions of the new Missouri abortion statute in
the particular light of the opinions and decisions in Roe and in Doe. To this we now turn, with the assistance of
helpful briefs from both sides and from some of the amici. A The definition of viability. Section 2(2) of the Act
defines "viability" as

															"that stage of fetal development when the life of the unborn
child may be continued indefinitely outside the womb by natural or
artificial life supportive systems."

															Appellants claim that this definition violates and conflicts
with the discussion of viability in our opinion in Roe. 410 U.S. at 410 U. S. 160 , 410 U. S. 163 .
In particular, appellants object to the failure of the definition
to contain any reference to a gestational time period, to its
failure to incorporate and reflect the three stages of pregnancy,
to the presence of the word "indefinitely," and to the extra burden
of regulation imposed. It is suggested that the definition expands
the Court's definition of viability, as expressed in Roe, and amounts to a legislative determination of what is properly a
matter for medical judgment. It is said that the "mere possibility
of momentary survival is not the medical standard of viability."
Brief for Appellants 67.

															In Roe, we used the term "viable," properly we thought,
to signify the point at which the fetus is "potentially able to
live outside the mother's womb, albeit with artificial aid," and
presumably capable of "meaningful life outside the mother's womb,"
410 U.S. at 410 U. S. 160 , 410 U. S. 163 .
We noted that this point "is usually placed" at about seven months
or 28 weeks, but may occur earlier. Id. at 410 U. S.
160 .

															We agree with the District Court, and conclude that the
definition of viability in the Act does not conflict with what was
said and held in Roe. In fact, we believe that, Page 428 U. S. 64 § 2(2), even when read in conjunction with § 5 (proscribing an
abortion "not necessary to preserve the life or health of the
mother . . . unless the attending physician first certifies with
reasonable medical certainty that the fetus is not viable"), the
constitutionality of which is not explicitly challenged here,
reflects an attempt on the part of the Missouri General Assembly to
comply with our observations and discussion in Roe relating to viability. Appellant Hall, in his deposition, had no
particular difficulty with the statutory definition. [ Footnote 3 ] As noted above, we recognized in Roe that viability was a matter of medical judgment,
skill, and technical ability, and we preserved the flexibility of
the term. Section 2(2) does the same. Indeed, one might argue, as
the appellees do, that the presence of the statute's words
"continued indefinitely" favor, rather than disfavor, the
appellants, for, arguably, the point when life can be "continued
indefinitely outside the womb" may well occur later in pregnancy
than the point where the fetus is "potentially able to live outside
the mother's womb." Roe v. Wade, 410 U.S. at 410 U. S.
160 .

															In any event, we agree with the District Court that it is not
the proper function of the legislature or the courts to place
viability, which essentially is a medical concept, at a specific
point in the gestation period. 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. The definition of
viability in § 2(2) merely reflects this fact. The appellees do not
contend otherwise, for they insist Page 428 U. S. 65 that the determination of viability rests with the physician in
the exercise of his professional judgment. [ Footnote 4 ]

															We thus do not accept appellants' contention that a specified
number of weeks in pregnancy must be fixed by statute as the point
of viability. See Wolfe v. Schroering, 388 F.
Supp. 631 , 637 (WD Ky.1974); Hodgson v.
Anderson, 378 F.
Supp. 1008 , 1016 (Minn.1974), dismissed for want of
jurisdiction sub nom. Spannaus v. Hodgson, 420 U.S. 903
(1975). [ Footnote 5 ]

															We conclude that the definition in § 2(2) of the Act does not
circumvent the limitations on state regulation outlined in Roe. We therefore hold that the Act's definition of
"viability" comports with Roe and withstands the
constitutional attack made upon it in this litigation. B The woman's consent. Under § 3(2) of the Act, a woman,
prior to submitting to an abortion during the first 12 weeks of
pregnancy, must certify in writing her consent to the procedure and
"that her consent is informed and freely given, and is not the
result of coercion." Appellants argue that this requirement is
violative of Page 428 U. S. 66 Roe v. Wade, 410 U.S. at 410 U. S.
164 -165, by imposing an extra layer and burden of
regulation on the abortion decision. See Doe v. Bolton, 410 U.S. at 410 U. S.
195 -200. Appellants also claim that the provision is
overbroad and vague.

															The District Court's majority relied on the propositions that
the decision to terminate a pregnancy, of course, "is often a
stressful one," and that the consent requirement of § 3(2) "insures
that the pregnant woman retains control over the discretions of her
consulting physician." 392 F. Supp. at 1368, 1369. The majority
also felt that the consent requirement "does not single out the
abortion procedure, but merely includes it within the category of
medical operations for which consent is required." [ Footnote 6 ] Id. at 1369. The third
judge joined the majority in upholding § 3(2), but added that the
written consent requirement was "not burdensome or chilling," and
manifested "a legitimate interest of the state that this important
decision has in fact been made by the person constitutionally
empowered to do so." 392 F. Supp. at 1374. He went on to observe
that the requirement "in no way interposes the state or third
parties in the decisionmaking process." Id. at 1375.

															We do not disagree with the result reached by the District Court
as to § 3(2). It is true that Doe and Roe clearly
establish that the State may not restrict the decision of the
patient and her physician regarding abortion during the first stage
of pregnancy. Despite the fact that apparently no other Missouri
statute, with the exceptions referred to in n 6, supra, requires a Page 428 U. S. 67 patient's prior written consent to a surgical procedure,
[ Footnote 7 ] the imposition by
§ 3(2) of such a requirement for termination of pregnancy even
during the first stage, in our view, is not, in itself, an
unconstitutional requirement. The decision to abort, indeed, is an
important and often a stressful one, and it is desirable and
imperative that it be made with full knowledge of its nature and
consequences. The woman is the one primarily concerned, and her
awareness of the decision and its significance may be assured,
constitutionally, by the State to the extent of requiring her prior
written consent.

															We could not say that a requirement imposed by the State that a
prior written consent for any surgery would be unconstitutional. As
a consequence, we see no constitutional defect in requiring it only
for some types of surgery as, for example, an intracardiac
procedure, or where the surgical risk is elevated above a specified
mortality level, or, for that matter, for abortions. [ Footnote 8 ] C The spouse's consent. Section 3(3) requires the prior
written consent of the spouse of the woman seeking an abortion
during the first 12 weeks of pregnancy, unless Page 428 U. S. 68 "the abortion is certified by a licensed physician to be
necessary in order to preserve the life of the mother." [ Footnote 9 ]

															The appellees defend § 3(3) on the ground that it was enacted in
the light of the General Assembly's "perception of marriage as an
institution," Brief for Appellee Danforth 34, and that any major
change in family status is a decision to be made jointly by the
marriage partners. Reference is made to an abortion's possible
effect on the woman's childbearing potential. It is said that
marriage always has entailed some legislatively imposed
limitations: reference is made to adultery and bigamy as criminal
offenses; to Missouri's general requirement, Mo.Rev.Stat. §
453.030.3 (1969), that, for an adoption of a child born in wedlock,
the consent of both parents is necessary; to similar joint consent
requirements imposed by a number of States with respect to
artificial insemination and the legitimacy of children so
conceived; to the laws of two States requiring spousal consent for
voluntary sterilization; and to the long-established requirement of
spousal consent for the effective disposition of an interest in
real property. It is argued that

															"[r]ecognizing that the consent of both parties is generally
necessary . . . to begin a family, the legislature has determined
that a change in the family structure set in motion by mutual
consent should be terminated only by mutual consent,"

															Brief for Appellee Danforth 38, and that what the legislature
did was to exercise its inherent policymaking power "for what was
believed to be in the best interests of all the people of
Missouri." Id. at 40.

															The appellants, on the other hand, contend that § 3(3) obviously
is designed to afford the husband the right unilaterally to prevent
or veto an abortion, whether or Page 428 U. S. 69 not he is the father of the fetus, and that this not only
violates Roe and Doe, but is also in conflict
with other decided cases. See, e.g., Poe v. Gerstein, 517
F.2d 787, 794-796 (CA5 1975), appeal docketed, No. 75-713; Wolfe v. Schroering, 388 F.Supp. at 636-637; Doe v.
Rampton, 366 F.
Supp. 189 , 193 (Utah 1973). They also refer to the situation
where the husband's consent cannot be obtained because he cannot be
located. And they assert that § 3(3) is vague and overbroad.

															In Roe and Doe, we specifically reserved
decision on the question whether a requirement for consent by the
father of the fetus, by the spouse, or by the parents, or a parent,
of an unmarried minor, may be constitutionally imposed. 410 U.S. at 410 U. S. 165 n. 67. We now hold that the State may not constitutionally require
the consent of the spouse, as is specified under § 3(3) of the
Missouri Act, as a condition for abortion during the first 12 weeks
of pregnancy. We thus agree with the dissenting judge in the
present case, and with the courts whose decisions are cited above,
that the State cannot

															"delegate to a spouse a veto power which the state itself is
absolutely and totally prohibited from exercising during the first
trimester of pregnancy."

															392 F. Supp. at 1375. Clearly, since the State cannot regulate
or proscribe abortion during the first stage, when the physician
and his patient make that decision, the State cannot delegate
authority to any particular person, even the spouse, to prevent
abortion during that same period.

															We are not unaware of the deep and proper concern and interest
that a devoted and protective husband has in his wife's pregnancy
and in the growth and development of the fetus she is carrying.
Neither has this Court failed to appreciate the importance of the
marital relationship in our society. See, e.g., Griswold v.
Connecticut, 381 U. S. 479 , 381 U. S. 486 (1965); Maynard v.
Hill , 125 U.S. Page 428 U. S. 70 190, 125 U. S. 211 (1888). [ Footnote 10 ]
Moreover, we recognize that the decision whether to undergo or to
forgo an abortion may have profound effects on the future of ay
marriage, effects that are both physical and mental, and possibly
deleterious. Notwithstanding these factors, we cannot hold that the
State has the constitutional authority to give the spouse
unilaterally the ability to prohibit the wife from terminating her
pregnancy when the State itself lacks that right. See
Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 453 (1972). [ Footnote 11 ] Page 428 U. S. 71 It seems manifest that, ideally, the decision to terminate a
pregnancy should be one concurred in by both the wife and her
husband. No marriage my be viewed as harmonious or successful if
the marriage partners are fundamentally divided on so important and
vital an issue. But it is difficult to believe that the goal of
fostering mutuality and trust in a marriage, and of strengthening
the marital relationship and the marriage institution, will be
achieved by giving the husband a veto power exercisable for any
reason whatsoever or for no reason at all. Even if the State had
the ability to delegate to the husband a power it itself could not
exercise, it is not at all likely that such action would further,
as the District Court majority phrased it, the "interest of the
state in protecting the mutuality of decisions vital to the
marriage relationship."

															392 F. Supp. at 1370.

															We recognize, of course, that, when a woman, with the approval
of her physician but without the approval of her husband, decides
to terminate her pregnancy, it could be said that she is acting
unilaterally. The obvious fact is that, when the wife and the
husband disagree on this decision, the view of only one of the two
marriage partners can prevail. Inasmuch as it is the woman who
physically bears the child and who is the more directly and
immediately affected by the pregnancy, as between the two, the
balance weighs in her favor. Cf. Roe v Wade, 410 U.S. at 410 U. S.
153 .

															We conclude that § 3(3) of the Missouri Act is inconsistent with
the standards enunciated in Roe v. Wade, 410 U.S. at 410 U. S.
164 -165, and is unconstitutional. It is therefore
unnecessary for us to consider the appellants' Page 428 U. S. 72 additional challenges to § 3(3) based on vagueness and
overbreadth. D Parental consent. Section 3(4) requires, with respect
to the first 12 weeks of pregnancy, where the woman is unmarried
and under the age of 18 years, the written consent of a parent or
person in loco parentis unless, again, "the abortion is
certified by a licensed physician as necessary in order to preserve
the life of the mother." It is to be observed that only one parent
need consent.

															The appellees defend the statute in several ways. They point out
that the law properly may subject minors to more stringent
limitations than are permissible with respect to adults, and they
cite, among other cases, Prince v. Massachusetts, 321 U. S. 158 (1944), and McKeiver v. Pennsylvania, 403 U.
S. 528 (1971). Missouri law, it is said, "is replete
with provisions reflecting the interest of the state in assuring
the welfare of minors," citing statutes relating to a guardian ad litem for a court proceeding, to the care of delinquent
and neglected children, to child labor, and to compulsory
education. Brief for Appellee Danforth 42. Certain decisions are
considered by the State to be outside the scope of a minor's
ability to act in his own best interest or in the interest of the
public, citing statutes proscribing the sale of firearms and deadly
weapons to minors without parental consent, and other statutes
relating to minors' exposure to certain types of literature, the
purchase by pawnbrokers of property from minors, and the sale of
cigarettes and alcoholic beverages to minors. It is pointed out
that the record contains testimony to the effect that children of
tender years (even ages 10 and 11) have sought abortions. Thus, a
State's permitting a child to obtain an abortion without the
counsel of an adult

															"who has responsibility Page 428 U. S. 73 or concern for the child would constitute an irresponsible
abdication of the State's duty to protect the welfare of
minors." Id. at 44. Parental discretion, too, has been protected
from unwarranted or unreasonable interference from the State,
citing Meyer v. Nebraska, 262 U.
S. 390 (1923); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Wisconsin v. Yoder, 406 U.
S. 205 (1972). Finally, it is said that § 3(4) imposes
no additional burden on the physician, because, even prior to the
passage of the Act, the physician would require parental consent
before performing an abortion on a minor.

															The appellants, in their turn, emphasize that no other Missouri
statute specifically requires the additional consent of a minor's
parent for medical or surgical treatment, and that, in Missouri, a
minor legally may consent to medical services for pregnancy
(excluding abortion), venereal disease, and drug abuse.
Mo.Rev.Stat. §§ 431.061-431.063 (Supp. 1975). The result of § 3(4),
it is said, "is the ultimate supremacy of the parents' desires over
those of the minor child, the pregnant patient." Brief for
Appellants 93. It is noted that, in Missouri, a woman under the age
of 18 who marries with parental consent does not require parental
consent to abort, and yet her contemporary who has chosen not to
marry must obtain parental approval.

															The District Court majority recognized that, in contrast to §
3(3), the State's interest in protecting the mutuality of a
marriage relationship is not present with respect to § 3(4). It
found "a compelling basis," however, in the State's interest "in
safeguarding the authority of the family relationship." 392 F.
Supp. at 1370. The dissenting judge observed that one could not
seriously argue that a minor must submit to an abortion if her
parents insist, and he could not see

															"why she would not be entitled to the same right of
self-determination now Page 428 U. S. 74 explicitly accorded to adult women, provided she is sufficiently
mature to understand the procedure and to make an intelligent
assessment of her circumstances with the advice of her
physician." Id. at 1376.

															Of course, much of what has been said above, with respect to §
3(3) applies with equal force to § 3(4). Other courts that have
considered the parental consent issue in the light of Roe and Doe, have concluded that a statute like § 3(4) does
not withstand constitutional scrutiny. See, e.g., Poe v.
Gerstein, 517 F.2d at 792; Wolfe v. Schroering, 388
F.Supp. at 636-637; Doe v. Rampton, 366 F. Supp. at 193,
199; State v. Koome, 84 Wash. 2d
901 , 530 P.2d
260 (1975).

															We agree with appellants and with the courts whose decisions
have just been cited that the State may not impose a blanket
provision, such as § 3(4), requiring the consent of a parent or
person in loco parentis as a condition for abortion of an
unmarried minor during the first 12 weeks of her pregnancy. Just as
with the requirement of consent from the spouse, so here, the State
does not have the constitutional authority to give a third party an
absolute, and possibly arbitrary, veto over the decision of the
physician and his patient to terminate the patient's pregnancy,
regardless of the reason for withholding the consent.

															Constitutional rights do not mature and come into being
magically only when one attains the state-defined age of majority.
Minors, as well as adults, are protected by the Constitution, and
possess constitutional rights. See, e.g., Breed v. Jones, 421 U. S. 519 (1975); Goss v. Lopez, 419 U. S. 565 (1975); Tinker v. Des Moines School Dist., 393 U.
S. 503 (1969); In re Gault, 387 U. S.
1 (1967). The Court indeed, however, long has recognized
that the State has somewhat broader authority to regulate the
activities of children than of adults. Page 428 U. S. 75 Prince v. Massachusetts, 321 U.S. at 321 U. S. 170 ; Ginsberg v. New York, 390 U. S. 629 (1968). It remains, then, to examine whether there is any
significant state interest in conditioning an abortion on the
consent of a parent or person in loco parentis that is not
present in the case of an adult.

															One suggested interest is the safeguarding of the family unit
and of parental authority. 392 F. Supp. at 1370. It is difficult,
however, to conclude that providing a parent with absolute power to
overrule a determination, made by the physician and his minor
patient, to terminate the patient's pregnancy will serve to
strengthen the family unit. Neither is it likely that such veto
power will enhance parental authority or control where the minor
and the nonconsenting parent are so fundamentally in conflict and
the very existence of the pregnancy already has fractured the
family structure. Any independent interest the parent may have in
the termination of the minor daughter's pregnancy is no more
weighty than the right of privacy of the competent minor mature
enough to have become pregnant.

															We emphasize that our holding that § 3(4) is invalid does not
suggest that every minor, regardless of age or maturity, may give
effective consent for termination of her pregnancy. See
Bellotti v. Baird, post, p. 428 U. S. 132 . The
fault with § 3(4) is that it imposes a special consent provision,
exercisable by a person other than the woman and her physician, as
a prerequisite to a minor's termination of her pregnancy, and does
so without a sufficient justification for the restriction. It
violates the strictures of Roe and Doe. E Saline amniocentesis. Section 9 of the statute
prohibits the use of saline amniocentesis, as a method or technique
of abortion, after the first 12 weeks of pregnancy. Page 428 U. S. 76 It describes the method as one whereby the amniotic fluid is
withdrawn and "a saline or other fluid" is inserted into the
amniotic sac. The statute imposes this proscription on the ground
that the technique "is deleterious to maternal health," and places
it in the form of a legislative finding. Appellants challenge this
provision on the ground that it operates to preclude virtually all
abortions after the first trimester. This is so, it is claimed,
because a substantial percentage, in the neighborhood of 70%
according to the testimony, of all abortions performed in the
United States after the first trimester are effected through the
procedure of saline amniocentesis. Appellants stress the fact that
the alternative methods of hysterotomy and hysterectomy are
significantly more dangerous and critical for the woman than the
saline technique; they also point out that the mortality rate for
normal childbirth exceeds that where saline amniocentesis is
employed. Finally, appellants note that the perhaps safer
alternative of prostaglandin instillation, suggested and strongly
relied upon by the appellees, at least at the time of the trial, is
not yet widely used in this country.

															We held in Roe that, after the first stage,

															"the State, in promoting its interest in the health of the
mother, may, if it chooses, regulate the abortion procedure in ways
that are reasonably related to maternal health."

															410 U.S. at 410 U. S. 164 .
The question with respect to § 9 therefore is whether the flat
prohibition of saline amniocentesis is a restriction which
"reasonably relates to the preservation and protection of maternal
health." Id. at 410 U. S. 163 .
The appellees urge that what the Missouri General Assembly has done
here is consistent with that guideline, and is buttressed by
substantial supporting medical evidence in the record to which this
Court should defer. Page 428 U. S. 77 The District Court's majority determined, on the basis of the
evidence before it, that the maternal mortality rate in childbirth
does, indeed, exceed the morality rate where saline amniocentesis
is used. Therefore, the majority acknowledged, § 9 could be upheld
only if there were safe alternative methods of inducing abortion
after the first 12 weeks. 392 F. Supp. at 1373. Referring to such
methods as hysterotomy, hysterectomy, "mechanical means of inducing
abortion," and prostaglandin injection, the majority said that at
least the latter two techniques were safer than saline.
Consequently, the majority concluded, the restriction in § 9 could
be upheld as reasonably related to maternal health.

															We feel that the majority, in reaching its conclusion, failed to
appreciate and to consider several significant facts. First, it did
not recognize the prevalence, as the record conclusively
demonstrates, of the use of saline amniocentesis as an accepted
medical procedure in this country; the procedure, as noted above,
is employed in a substantial majority (the testimony from both
sides ranges from 68% to 80%) of all post-first-trimester
abortions. Second, it failed to recognize that, at the time of
trial, there were severe limitations on the availability of the
prostaglandin technique, which, although promising, was used only
on an experimental basis until less than two years before. See
Wolfe v. Schroerin, 388 F. Supp. at 637, where it was said
that at that time (1974), there were "no physicians in Kentucky
competent in the technique of prostaglandin amnio infusion." And
appellees offered no evidence that prostaglandin abortions were
available in Missouri. [ Footnote
12 ] Third, the statute's Page 428 U. S. 78 reference to the insertion of "a saline or other fluid" appears
to include within its proscription the intra-amniotic injection of
prostaglandin itself, and other methods that may be developed in
the future and that may prove highly effective and completely safe.
Finally, the majority did not consider the anomaly inherent in § 9
when it proscribes the use of saline, but does not prohibit
techniques that are many times more likely to result in maternal
death. See 392 F. Supp. at 1378 n. 8 (dissenting
opinion).

															These unappreciated or overlooked factors place the State's
decision to bar use of the saline method in a completely different
light. The State, through § 9, would prohibit the use of a method
which the record shows is the one most commonly used nationally by
physicians after the first trimester, and which is safer, with
respect to maternal mortality, than even continuation of the
pregnancy until normal childbirth. Moreover, Page 428 U. S. 79 as a practical matter, it forces a woman and her physician to
terminate her pregnancy by methods more dangerous to her health
than the method outlawed.

															As so viewed, particularly in the light of the present
unavailability -- as demonstrated by the record -- of the
prostaglandin technique, the outright legislative proscription of
saline fails as a reasonable regulation for the protection of
maternal health. It comes into focus, instead, as an unreasonable
or arbitrary regulation designed to inhibit, and having the effect
of inhibiting, the vast majority of abortions after the first 12
weeks. As such, it does not withstand constitutional challenge. See Wolfe v. Schroering, 388 F. Supp. at 637. F Recordkeeping. Sections 10 and 11 of the Act impose
recordkeeping requirements for health facilities and physicians
concerned with abortions irrespective of the pregnancy stage. Under
§ 10, each such facility and physician is to be supplied with
forms

															"the purpose and function of which shall be the preservation of
maternal health and life by adding to the sum of medical knowledge
through the compilation of relevant maternal health and life data
and to monitor all abortions performed to assure that they are done
only under and in accordance with the provisions of the law."

															The statute states that the information on the forms "shall be
confidential and shall be used only for statistical purposes." The
"records, however, may be inspected and health data acquired by
local, state, or national public health officers." Under § 11, the
records are to be kept for seven years in the permanent files of
the health facility where the abortion was performed.

															Appellants object to these reporting and recordkeeping
provisions on the ground that they, too, impose an extra Page 428 U. S. 80 layer and burden of regulation, and that they apply throughout
all stages of pregnancy. All the judges of the District Court
panel, however, viewed these provisions as statistical requirements
"essential to the advancement of medical knowledge," and as nothing
that would "restrict either the abortion decision itself or the
exercise of medical judgment in performing an abortion." 392 F.
Supp. at 1374.

															One may concede that there are important and perhaps conflicting
interests affected by recordkeeping requirements. On the one hand,
maintenance of records indeed may be helpful in developing
information pertinent to the preservation of maternal health. On
the other hand, as we stated in Roe, during the first
stage of pregnancy, the State may impose no restrictions or
regulations governing the medical judgment of the pregnant woman's
attending physician with respect to the termination of her
pregnancy. 410 U.S. at 410 U. S. 163 , 410 U. S. 164 .
Furthermore, it is readily apparent that one reason for the
recordkeeping requirement, namely, to assure that all abortions in
Missouri are performed in accordance with the Act, fades somewhat
into insignificance in view of our holding above as to spousal and
parental consent requirements.

															Recordkeeping and reporting requirements that are reasonably
directed to the preservation of maternal health and that properly
respect a patient's confidentiality and privacy are permissible.
This surely is so for the period after the first stage of
pregnancy, for then the State may enact substantive as well as
recordkeeping regulations that are reasonable means of protecting
maternal health. As to the first stage, one may argue forcefully,
as the appellants do, that the State should not be able to impose
any recordkeeping requirements that significantly differ from those
imposed with respect to other, Page 428 U. S. 81 and comparable, medical or surgical procedures. We conclude,
however, that the provisions of §§ 10 and 11, while perhaps
approaching impermissible limits, are not constitutionally
offensive in themselves. Recordkeeping of this kind, if not abused
or overdone, can be useful to the State's interest in protecting
the health of its female citizens, and may be a resource that is
relevant to decisions involving medical experience and judgment.
[ Footnote 13 ] The added
requirements for confidentiality, with the sole exception for
public health officers, and for retention for seven years, a period
not unreasonable in length, assist and persuade us in our
determination of the constitutional limits. As so regarded, we see
no legally significant impact or consequence on the abortion
decision or on the physician-patient relationship. We naturally
assume, furthermore, that these recordkeeping and
record-maintaining provisions will be interpreted and enforced by
Missouri's Division of Health in the light of our decision with
respect to the Act's other provisions, and that, of course, they
will not be utilized in such a way as to accomplish, through the
sheer burden of recordkeeping detail, what we have held to be an
otherwise unconstitutional restriction. Obviously, the State may
not require execution of spousal and parental consent forms that
have been invalidated today. G Standard of care. Appellee Danforth in No. 74-1419
appeals from the unanimous decision of the District Page 428 U. S. 82 Court that § (1) of the Act is unconstitutional. That section
provides:

															"No person who performs or induces an abortion shall fail to
exercise that degree of professional skill, care and diligence to
preserve the life and health of the fetus which such person would
be required to exercise in order to preserve the life and health of
any fetus intended to be born and not aborted. Any physician or
person assisting in the abortion who shall fail to take such
measures to encourage or to sustain the life of the child, and the
death of the child results, shall be deemed guilty of manslaughter.
. . . Further, such physician or other person shall be liable in an
action for damages."

															The District Court held that the first sentence was
unconstitutionally overbroad because it failed to exclude from its
reach the stage of pregnancy prior to viability. 392 F. Supp. at
1371.

															The Attorney General argues that the District Court's
interpretation is erroneous and unnecessary. He claims that the
first sentence of § 6(1) establishes only the general standard of
care that applies to the person who performs the abortion, and that
the second sentence describes the circumstances when that standard
of care applies, namely, when a live child results from the
procedure. Thus, the first sentence, it is said, despite its
reference to the fetus, has no application until a live birth
results.

															The appellants, of course, agree with the District Court. They
take the position that § 6(1) imposes its standard of care upon the
person performing the abortion even though the procedure takes
place before viability. They argue that the statute, on its face,
effectively precludes abortion, and was meant to do just that. Page 428 U. S. 83 We see nothing that requires federal court abstention on this
issue. Wisconsin v. Constantineau, 400 U.
S. 433 , 400 U. S.
437 -439 (1971); Kusper v. Pontikes, 414 U. S. 51 ,5 414 U. S. 4 -55
(1973). And, like the three judges of the District Court, we are
unable to accept the appellee's sophisticated interpretation of the
statute. Section 6(1) requires the physician to exercise the
prescribed skill, care, and diligence to preserve the life and
health of the fetus. It does not specify that such care
need be taken only after the stage of viability has been reached.
As the provision now reads, it impermissibly requires the physician
to preserve the life and health of the fetus, whatever the stage of
pregnancy. The fact that the second sentence of § 6(1) refers to a
criminal penalty where the physician fails "to take such measures
to encourage or to sustain the life of the child, and the
death of the child results" (emphasis supplied), simply
does not modify the duty imposed by the previous sentence or limit
that duty to pregnancies that have reached the stage of
viability.

															The appellees finally argue that, if the first sentence of §
6(1) does not survive constitutional attack, the second sentence
does, and, under the Act's severability provision, § B, is
severable from the first. The District Court's ruling of
unconstitutionality, 392 F. Supp. at 1371, made specific reference
to the first sentence, but its conclusion of law and its judgment
invalidated all of § 6(1). Id. at 1374; Jurisdictional
Statement A-34 in No. 74-1419. Appellee Danforth's motion to alter
or amend the judgment, so far as the second sentence of § 6(1) was
concerned, was denied by the District Court. Id. at
A-39.

															We conclude, as did the District Court, that § 6(1) must stand
or fall as a unit. Its provisions are inextricably bound together.
And a physician's or other person's criminal failure to protect a
live-born infant surely Page 428 U. S. 84 will be subject to prosecution in Missouri under the State's
criminal statutes.

															The judgment of the District Court is affirmed in part and
reversed in part, and the case is remanded for further proceedings
consistent with this opinion. It is so ordered. | 428 U.S.
52 app| APPENDIX TO OPINION OF THE COURT H. C. S. HOUSE BILL No. 1211 AN ACT relating to abortion with penalty provisions and
emergency clause. Be it enacted by the General Assembly of
the State of Missouri, as follows: Section 1. It is the intention of the general assembly of the
state of Missouri to reasonably regulate abortion in conformance
with the decisions of the supreme court of the United States.

															Section 2. Unless the language or context clearly indicates a
different meaning is intended, the following words or phrases for
the purpose of this act shall be given the meaning ascribed to
them:

															(1) "Abortion," the intentional destruction of the life of an
embryo or fetus in his or her mother's womb or the intentional
termination of the pregnancy of a mother with an intention other
than to increase the probability of a live birth or to remove a
dead or dying unborn child;

															(2) "Viability," that stage of fetal development when the life
of the unborn child may be continued indefinitely outside the womb
by natural or artificial life supportive systems;

															(3) "Physician," any person licensed to practice medicine Page 428 U. S. 85 in this state by the state board of registration of the healing
arts.

															Section 3. No abortion shall be performed prior to the end of
the first twelve weeks of pregnancy except:

															(1) By a duly licensed, consenting physician in the exercise of
his best clinical medical judgment.

															(2) After the woman, prior to submitting to the abortion,
certifies in writing her consent to the abortion and that her
consent is informed and freely given and is not the result of
coercion.

															(3) With the written consent of the woman's spouse, unless the
abortion is certified by a licensed physician to be necessary in
order to preserve the life of the mother.

															(4) With the written consent of one parent or person in loco
parentis of the woman if the woman is unmarried and under the
age of eighteen years, unless the abortion is certified by a
licensed physician as necessary in order to preserve the life of
the mother.

															Section 4. No abortion performed subsequent to the first twelve
weeks of pregnancy shall be performed except where the provisions
of section 3 of this act are satisfied and in a hospital.

															Section 5. No abortion not necessary to preserve the life or
health of the mother shall be performed unless the attending
physician first certifies with reasonable medical certainty that
the fetus is not viable.

															Section 6. (1) No person who performs or induces an abortion
shall fail to exercise that degree of professional skill, care and
diligence to preserve the life and health of the fetus which such
person would be required to exercise in order to preserve the life
and health of any fetus intended to be born and not aborted. Any
physician or person assisting in the abortion who Page 428 U. S. 86 shall fail to take such measures to encourage or to sustain the
life of the child, and the death of the child results, shall be
deemed guilty of manslaughter and upon conviction shall be punished
as provided in Section 559.140, RSMo. Further, such physician or
other person shall be liable in an action for damages as provided
in Section 537.080, RSMo.

															(2) Whoever, with intent to do so, shall take the life of a
premature infant aborted alive, shall be guilty of murder of the
second degree.

															(3) No person shall use any fetus or premature infant aborted
alive for any type of scientific, research, laboratory or other
kind of experimentation either prior to or subsequent to any
abortion procedure except as necessary to protect or preserve the
life and health of such premature infant aborted alive.

															Section 7. In every case where a live born infant results from
an attempted abortion which was not performed to save the life or
health of the mother, such infant shall be an abandoned ward of the
state under the jurisdiction of the juvenile court wherein the
abortion occurred, and the mother and father, if he consented to
the abortion, of such infant, shall have no parental rights or
obligations whatsoever relating to such infant, as if the parental
rights had been terminated pursuant to section 211.411, RSMo. The
attending physician shall forthwith notify said juvenile court of
the existence of such live born infant.

															Section 8. Any woman seeking an abortion in the state of
Missouri shall be verbally informed of the provisions of section 7
of this act by the attending physician and the woman shall certify
in writing that she has been so informed.

															Section 9. The general assembly finds that the method or
technique of abortion known as saline amniocentesis Page 428 U. S. 87 whereby the amniotic fluid is withdrawn and a saline or other
fluid is inserted into the amniotic sac for the purpose of killing
the fetus and artificially inducing labor is deleterious to
maternal health and is hereby prohibited after the first twelve
weeks of pregnancy.

															Section 10. 1. Every health facility and physician shall be
supplied with forms promulgated by the division of health, the
purpose and function of which shall be the preservation of maternal
health and life by adding to the sum of medical knowledge through
the compilation of relevant maternal health and life data and to
monitor all abortions performed to assure that they are done only
under and in accordance with the provisions of the law.

															2. The forms shall be provided by the state division of
health.

															3. All information obtained by physician, hospital, clinic or
other health facility from a patient for the purpose of preparing
reports to the division of health under this section or reports
received by the division of health shall be confidential and shall
be used only for statistical purposes. Such records, however, may
be inspected and health data acquired by local, state, or national
public health officers.

															Section 11. All medical records and other documents required to
be kept shall be maintained in the permanent files of the health
facility in which the abortion was performed for a period of seven
years.

															Section 12. Any practitioner of medicine, surgery, or nursing,
or other health personnel who shall willfully and knowingly do or
assist any action made unlawful by this act shall be subject to
having his license, application for license, or authority to
practice his profession as a physician, surgeon, or nurse in the
state of Missouri Page 428 U. S. 88 rejected or revoked by the appropriate state licensing
board.

															Section 13. Any physician or other person who fails to maintain
the confidentiality of any records or reports required under this
act is guilty of a misdemeanor and, upon conviction, shall be
punished as provided by law.

															Section 14. Any person who contrary to the provisions of this
act knowingly performs or aids in the performance of any abortion
or knowingly fails to perform any action required by this act shall
be guilty of a misdemeanor and, upon conviction, shall be punished
as provided by law.

															Section 15. Any person who is not a licensed physician as
defined in section 2 of this act who performs or attempts to
perform an abortion on another as defined in subdivision (1) of
section 2 of this act, is guilty of a felony, and upon conviction,
shall be imprisoned by the department of corrections for a term of
not less than two years nor more than seventeen years.

															Section 16. Nothing in this act shall be construed to exempt any
person, firm, or corporation from civil liability for medical
malpractice for negligent acts or certification under this act.

															Section A. Because of the necessity for immediate state action
to regulate abortions to protect the lives and health of citizens
of this state, this act is deemed necessary for the immediate
preservation of the public health, welfare, peace and safety, and
is hereby declared to be an emergency act within the meaning of the
constitution, and this act shall be in full force and effect upon
its passage and approval.

															Section B. If any provision of this Act or the application
thereof to any person or circumstance shall be Page 428 U. S. 89 held invalid, such invalidity does not affect the provisions or
application of this Act which can be given effect without the
invalid provisions or applications, and to this end the provisions
of this Act are declared to be severable.

															Approved June 14, 1974.

															Effective June 14, 1974.

															* Together with No. 74-1419, Danforth, Attorney General of
Missouri v. Planned Parenthood of Central Missouri et al., also on appeal from the same court.

															[ Footnote 1 ]

															"Viability is usually placed at about seven months (28 weeks),
but may occur earlier, even at 24 weeks." Roe v. Wade, 410
U.S. at 410 U. S.
160 .

															[ Footnote 2 ]

															This is not so, however, with respect to § 7 of the Act,
pertaining to state wardship of a live-born infant. Section 7
applies "where a live born infant results from an attempted
abortion which was not performed to save the life or health of the
mother." It then provides that the infant "shall be an abandoned
ward of the state," and that the mother -- and the father, too, if
he consented to the abortion -- "shall have no parental rights or
obligations whatsoever relating to such infant."

															The physician appellants do not contend that this section of the
Act imposes any obligation on them, or that its operation otherwise
injures them in fact. They do not claim any interest in the
question of who receives custody that is "sufficiently concrete" to
satisfy the "case or controversy" requirement of a federal court's
Art. III jurisdiction. Singleton v. Wulff, post at 428 U. S. 112 .
Accordingly, the physician appellants do not have standing to
challenge § 7 of the Act.

															The District Court did not decide whether Planned Parenthood has
standing to challenge the Act, or any portion of it, because of its
view that the physician appellants have standing to challenge the
entire Act. 392
F. Supp. 1362 , 1366-1367 (1975). We decline to consider here
the standing of Planned Parenthood to attack § 7. That question
appropriately may be left to the District Court for reconsideration
on remand. As a consequence, we do not decide the issue of § 7's
constitutionality.

															[ Footnote 3 ]

															"[A]lthough I agree with the definition of viability,' I
think that it must be understood that viability is a very difficult
state to assess." Tr. 369. [ Footnote 4 ]

															"The determination of when the fetus is viable rests, as it
should, with the physician, in the exercise of his medical
judgment, on a case-by-case basis."

															Brief for Appellee Danforth 26.

															"Because viability may vary from patient to patient and with
advancements in medical technology, it is essential that physicians
make the determination in the exercise of their medical
judgment." Id. at 28. "Defendant agrees that viability' will
vary, that it is a difficult state to assess . . . and that it must
be left to the physician's judgment." Id. at 29. [ Footnote 5 ]

															The Minnesota statute under attack in Hodgson provided
that a fetus "shall be considered potentially viable'" during
the second half of its gestation period. Noting that the defendants
had presented no evidence of viability at 20 weeks, the three-judge
District Court held that that definition of viability was
"unreasonable, and cannot stand." 378 F. Supp. at 1016. [ Footnote 6 ]

															Apparently, however, the only other Missouri statutes concerned
with consent for general medical or surgical care relate to persons
committed to the Missouri State chest hospital, Mo.Rev.Stat. §
199.240 (Supp. 1975), or to mental or correctional institutions, §
105.700 (1969).

															[ Footnote 7 ]

															There is some testimony in the record to the effect that taking
from the patient a prior written consent to surgery is the custom.
That may be so in some areas of Missouri, but we definitely refrain
from characterizing it extremely as "the universal practice of the
medical profession," as the appellees do. Brief for Appellee
Danforth 32.

															[ Footnote 8 ]

															The appellants' vagueness argument centers on the word
"informed." One might well wonder, off-hand, just what "informed
consent" of a patient is. The three Missouri federal judges who
composed the three-judge District Court, however, were not
concerned, and we are content to accept, as the meaning, the giving
of information to the patient as to just what would be done and as
to its consequences. To ascribe more meaning than this might well
confine the attending physician in an undesired and uncomfortable
straitjacket in the practice of his profession.

															[ Footnote 9 ]

															It is of some interest to note that the condition does not
relate, as most statutory conditions in this area do, to the
preservation of the life or health of the mother.

															[ Footnote 10 ]

															We deal with a right of privacy older than the Bill of Rights --
older than our political parties, older than our school system.
Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial
or social projects. Yet it is an association for as noble a purpose
as any involved in our prior decisions. Griswold v. Connecticut, 381 U.S. at 381 U. S.
486 .

															[ Footnote 11 ]

															As the Court recognized in Eisenstadt v. Baird, "the marital couple is not an independent entity with a mind and
heart of its own, but an association of two individuals, each with
a separate intellectual and emotional makeup. If the right of
privacy means anything, it is 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."

															405 U.S. at 405 U. S. 453 (emphasis in original).

															The dissenting opinion of our Brother WHITE appears to overlook
the implications of this statement upon the issue whether § 3(3) is
constitutional. This section does much more than insure that the
husband participate in the decision whether his wife should have an
abortion. The State, instead, has determined that the husband's
interest in continuing the pregnancy of his wife always outweighs
any interest on her part in terminating it, irrespective of the
condition of their marriage. The State, accordingly, has granted
him the right to prevent unilaterally, and for whatever reason, the
effectuation of his wife's and her physician's decision to
terminate her pregnancy. This state determination not only may
discourage the consultation that might normally be expected to
precede a major decision affecting the marital couple, but also,
and more importantly, the State has interposed an absolute obstacle
to a woman's decision that Roe held to be constitutionally
protected from such interference.

															[ Footnote 12 ]

															In response to MR. JUSTICE WHITE's criticism that the
prostaglandin method of inducing abortion was available in
Missouri, either at the time the Act was passed or at the time of
trial, we make the following observations. First, there is no
evidence in the record to which our Brother has pointed that
demonstrates that the prostaglandin method was or is available in
Missouri. Second, the evidence presented to the District Court does
not support such a view. Until January, 1974, prostaglandin was
used only on an experimental basis in a few medical centers. And,
at the time the Missouri General Assembly proscribed saline, the
sole distributor of prostaglandin "restricted sales to around
twenty medical centers from coast to coast." Brief for Appellee
Danforth 68.

															It is clear, therefore, that, at the time the Missouri General
Assembly passed the Act, prostaglandin was not available in any
meaningful sense of that term. Because of this undisputed fact, it
was incumbent upon appellees to show that, at the time of trial in
1974, prostaglandin was available. They failed to do so. Indeed,
appellees' expert witness, on whose testimony the dissenting
opinion relies, does not fill this void. He was able to state only
that prostaglandin was used in a limited way until shortly before
trial, and that he "would think" that it was more readily available
at the time of trial. Tr. 335. Such an experimental and limited use
of prostaglandin throughout the country does not make it available
or accessible to concerned persons in Missouri.

															[ Footnote 13 ]

															We note that in Missouri physicians must participate in the
reporting of births and deaths, Mo.Rev.Stat. §§ 193.100 and 193.140
(1969), and communicable diseases, §§ 192.020 and 192.040 (1969),
and that their use of controlled substances is rigidly monitored by
the State, §§ 195.010-195.545 (1969 and Supp. 1975).

															MR. JUSTICE STEWART, with whom MR. JUSTICE POWELL joins,
concurring.

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

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

															I agree with the Court that the patient consent provision in §
3(2) is constitutional. While § 3(2) obviously regulates the
abortion decision during all stages of pregnancy, including the
first trimester, I do not believe it conflicts with the statement
in Roe v. Wade, 410 U. S. 113 , 410 U. S. 163 ,
that,

															"for the period of pregnancy prior to [approximately the end of
the first trimester], the attending physician, in consultation with
his patient, is free to determine, without regulation by the State,
that, in his medical judgment, the patient's pregnancy should be
terminated. If that decision is reached, the judgment Page 428 U. S. 90 may be effectuated by an abortion free of interference by the
State."

															That statement was made in the context of invalidating a state
law aimed at thwarting a woman's decision to have an abortion. It
was not intended to preclude the State from enacting a provision
aimed at ensuring that the abortion decision is made in a knowing,
intelligent, and voluntary fashion.

															As to the provision of the law that requires a husband's consent
to an abortion, § 3(3), the primary issue that it raises is whether
the State may constitutionally recognize and give effect to a right
on his part to participate in the decision to abort a jointly
conceived child. This seems to me a rather more difficult problem
than the Court acknowledges. Previous decisions have recognized
that a man's right to father children and enjoy the association of
his offspring is a constitutionally protected freedom. See
Stanley v. Illinois, 405 U. S. 645 ; Skinner v. Oklahoma ex rel. Williamson, 316 U.
S. 535 . But the Court has recognized as well that the
Constitution protects "a woman's decision whether or not
to terminate her pregnancy." Roe v. Wade, supra at 410 U. S. 153 (emphasis added). In assessing the constitutional validity of §
3(3), we are called upon to choose between these competing rights.
I agree with the Court that, since

															"it is the woman who physically bears the child and who is the
more directly and immediately affected by the pregnancy . . . , the
balance weighs in her favor." Ante at 428 U. S.
71 .

															With respect to the state law's requirement of parental consent,
§ 3(4), I think it clear that its primary constitutional deficiency
lies in its imposition of an absolute limitation on the minor's
right to obtain an abortion. The Court's opinion today in Bellotti v. Baird, post at 428 U. S.
147 -148, suggests that a materially different
constitutional issue would be presented under a provision requiring
parental consent or consultation in most cases Page 428 U. S. 91 but providing for prompt (i) judicial resolution of any
disagreement between the parent and the minor, or (ii) judicial
determination that the minor is mature enough to give an informed
consent without parental concurrence or that abortion in any event
is in the minor's best interest. Such a provision would not impose
parental approval as an absolute condition upon the minor's right,
but would assure in most instances consultation between the parent
and child. [ Footnote 2/1 ]

															There can be little doubt that the State furthers a
constitutionally permissible end by encouraging an unmarried
pregnant minor to seek the help and advice of her parents in making
the very important decision whether or not to bear a child. That is
a grave decision, and a girl of tender years, under emotional
stress, may be ill-equipped to make it without mature advice and
emotional support. It seems unlikely that she will obtain adequate
counsel and support from the attending physician at an abortion
clinic, where abortions for pregnant minors frequently take place.
[ Footnote 2/2 ] Page 428 U. S. 92 As to the constitutional validity of § 9 of the Act, prohibiting
the use of the saline amniocentesis procedure, I agree fully with
the views expressed by MR. JUSTICE STEVENS.

															[ Footnote 2/1 ]

															For some of the considerations that support the State's interest
in encouraging parental consent, see the opinion of MR.
JUSTICE STEVENS, concurring in part and dissenting in part. Post at 428 U. S.
102 -105.

															[ Footnote 2/2 ]

															The mode of operation of one such clinic is revealed by the
record in Bellotti v. Baird, post, p. 428 U. S. 132 , and
accurately described by appellants in that case:

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

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

															Brief for Appellants in No. 773, O.T. 1975, pp. 43 44.

															MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring in part and dissenting in part.

															In Roe v. Wade, 410 U. S. 113 (1073), this Court recognized a right to an abortion free from
state prohibition. The task of policing this limitation on state
police power is and will be a difficult and continuing venture in
substantive due process. However, even accepting Roe v.
Wade, there is nothing in the opinion in that case, and
nothing articulated in the Court's opinion in this case, which
justifies the invalidation of four provisions of House Committee
Substitute for House Bill No. 1211 (hereafter Act) enacted by the
Missouri 77th General Assembly in 1974 in response to Roe v.
Wade. Accordingly, I dissent in part. I Roe v. Wade, supra at 410 U. S. 163 ,
holds that, until a fetus becomes viable, the interest of the State
in the life or potential life it represents is outweighed by the
interest of the mother in choosing "whether or not to terminate her
pregnancy." 410 U.S. at 410 U. S. 153 .
Section 3(3) of the Act provides that a married woman may not
obtain an abortion without her husband's consent. The Court strikes
down this statute in one sentence. It says that,

															"since the State cannot . . . proscribe abortion . . . the State
cannot delegate authority to any particular person, Page 428 U. S. 93 even the spouse, to prevent abortion. . . ." Ante at 428 U. S. 69 .
But the State is not -- under § 3(3) -- delegating to the husband
the power to vindicate the State's interest in the future life of
the fetus. It is, instead, recognizing that the husband has an
interest of his own in the life of the fetus which should not be
extinguished by the unilateral decision of the wife. [ Footnote 3/1 ] It by no means follows, from
the fact that the mother's interest in deciding "whether or not to
terminate her pregnancy" outweighs the State's interest in the
potential life of the fetus, that the husband's interest is also
outweighed, and may not be protected by the State. A father's
interest in having a child -- perhaps his only child -- may be
unmatched by any other interest in his life. See Stanley v.
Illinois, 405 U. S. 645 , 405 U. S. 651 (1972), and cases there cited. It is truly surprising that the
majority finds in the United States Constitution, as it must in
order to justify the result it reaches, a rule that the State must
assign a greater value to a mother's decision to cut off a
potential human life by abortion than to a father's decision to let
it mature into a live child. Such a rule cannot be found there, nor
can it be found in Roe v. Wade, supra. These are matters
which a State should be able to decide free from the suffocating
power of the federal judge, purporting to act in the name of the
Constitution. Page 428 U. S. 94 In describing the nature of a mother's interest in terminating a
pregnancy, the Court in Roe v. Wade mentioned only the
post-birth burdens of rearing a child, 410 U.S. at 410 U. S. 153 ,
and rejected a rule based on her interest in controlling her own
body during pregnancy. Id. at 410 U. S. 154 .
Missouri has a law which prevents a woman from putting a child up
for adoption over her husband's objection, Mo.Rev.Stat. § 453.030
(1969). This law represents a judgment by the State that the
mother's interest in avoiding the burdens of childrearing do not
outweigh or snuff out the father's interest in participating in
bringing up his own child. That law is plainly valid, but no more
so than § 3(3) of the Act now before us, resting, as it does, on
precisely the same judgment. II Section 3(4) requires that an unmarried woman under 18 years of
age obtain the consent of a parent or a person in loco
parentis as a condition to an abortion. Once again, the Court
strikes the provision down in a sentence. It states:

															"Just as with the requirement of consent from the spouse, so
here, the State does not have the constitutional authority to give
a third party an absolute, and possibly arbitrary, veto over the
decision of the physician and his patient to terminate the
patient's pregnancy. . . ." Ante at 428 U. S. 74 .
The Court rejects the notions that the State has an interest in
strengthening the family unit, or that the parent has an
"independent interest" in the abortion decision, sufficient to
justify § 3(4), and apparently concludes that the provision is
therefore unconstitutional. But the purpose of the parental consent
requirement is not merely to vindicate any interest of the parent
or of the State. The purpose of the requirement is to vindicate the
very right created in Roe v. Wade, supra -- the right of
the pregnant woman to decide Page 428 U. S. 95 "whether or not to terminate her pregnancy." 410 U.S.
at 410 U. S. 13 (emphasis added). The abortion decision is unquestionably
important, and has irrevocable consequences whichever way it is
made. Missouri is entitled to protect the minor unmarried woman
from making the decision in a way which is not in her own best
interests, and it seeks to achieve this goal by requiring parental
consultation and consent. This is the traditional way by which
States have sought to protect children from their own immature and
improvident decisions, [ Footnote
3/2 ] and there is absolutely no reason expressed by the
majority why the State may not utilize that method here. III Section 9 of the Act prohibits abortion by the method known as
saline amniocentesis -- a method used at the time the Act was
passed for 70% of abortions performed after the first trimester.
Legislative history reveals that the Missouri Legislature viewed
saline amniocentesis as far less safe a method of abortion than the
so-called prostaglandin method. The court below took evidence on
the question and summarized it as follows:

															"The record of trial discloses that use of the saline method
exposes a woman to the danger of severe complications regardless of
the skill of the physician or the precaution taken. Saline may
cause one or Page 428 U. S. 96 more of he following conditions: disseminated intravascular
coagulation or 'consumptive coagulapathy' (disruption of the
blood-clotting mechanism [Dr. Warren, Tr. 57-58; Dr. Klaus, Tr.
269-270; Dr. Anderson, Tr. 307; Defts.' Exs. H & M]), which may
result in severe bleeding and possibly death (Dr. Warren, Tr. 58);
hypernatremia (increase in blood sodium level), which may lead to
convulsions and death (Dr. Klaus, Tr. 268); and water intoxication
(accumulated water in the body tissue which may occur when oxytoxin
is used in conjunction with the injection of saline), resulting in
damage to the central nervous system or death (Dr. Warren, Tr. 76;
Dr. Klaus, Tr. 270-271; Dr. Anderson, Tr. 310; Defts.' Ex. L).
There is also evidence that saline amniocentesis causes massive
tissue destruction to the inside of the uterus (Dr. Anderson, Tr.
308)." 392
F. Supp. 1362 , 1372-1373 (1975). The District Court also cited
considerable evidence establishing that the prostaglandin method is
safer. In fact, the Chief of Obstetrics at Yale University, Dr.
Anderson, suggested that "physicians should be liable for
malpractice if they chose saline over prostaglandin after having
been given all the facts on both methods." Id. at 1373.
The Court nevertheless reverses the decision of the District Court
sustaining § 9 against constitutional challenge. It does so
apparently because saline amniocentesis was widely used before the
Act was passed; because the prostaglandin method was seldom used,
and was not generally available; and because other abortion
techniques more dangerous than saline amniocentesis were not
banned. At bottom, the majority's holding -- as well as the
concurrence -- rests on its factual finding that the
prostaglandin method is unavailable to the women of Page 428 U. S. 97 Missouri. It therefore concludes that the ban on the saline
method is

															"an unreasonable or arbitrary regulation designed to inhibit,
and having the effect of inhibiting, the vast majority of abortions
after the first 12 weeks," ante at 428 U. S. 79 .
This factual finding was not made either by the majority or by the
dissenting judge below. Appellants have not argued that the record
below supports such a finding. In fact, the record below does not
support such a finding. There is no evidence in the record
that women in Missouri will be unable to obtain abortions by the
prostaglandin method. What evidence there is in the record on this
question supports the contrary conclusion. [ Footnote 3/3 ] The record discloses that the
prostaglandin method of abortion was the country's second most
common method of abortion during the second trimester, Tr. 42,
89-90; that, although the prostaglandin method had previously been
available only on an experimental basis, it was, at the time of
trial available in "small hospitals all over the country," id. at 342; that, in another year or so, the prostaglandin
method would become -- even in the absence of legislation on the
subject -- the most prevalent method. Anderson deposition at 69.
Moreover, one doctor quite sensibly testified that, if the saline
method were banned, hospitals would quickly switch to the
prostaglandin method.

															The majority relies on the testimony of one doctor that -- as
already noted -- prostaglandin had been available on an
experimental basis only until January 1, 1974, and that its
manufacturer, the Upjohn Co., restricted its sales to large medical
centers for the following six months, after which sales were to be
unrestricted. Tr. Page 428 U. S. 98 334, 335. In what manner this evidence supports the proposition
that prostaglandin is unavailable to the women of Missouri escapes
me. The statute involved in this litigation was passed on June 14,
1974; evidence was taken in July, 1974; the District Court's decree
sustaining the ban on the saline method which this Court overturns
was entered in January, 1975; and this Court declares the statute
unconstitutional in July, 1976. There is simply no evidence in the
record that prostaglandin was or is unavailable at any time
relevant to this case. Without such evidence and without any
factual finding by the court below, this Court cannot properly
strike down a statute passed by one of the States. Of course, there
is no burden on a State to establish the constitutionality of one
of its laws. Absent proof of a fact essential to its
unconstitutionality, the statute remains in effect.

															The only other basis for its factual finding which the majority
offers is a citation to another case -- Wolfe v.
Schroerin, 388 F.
Supp. 631 , 637 (WD Ky.1974) -- in which a different court
concluded that the record in its case showed the prostaglandin
method to be unavailable in another State -- Kentucky -- at another
time -- two years ago. This case must be decided on its own record.
I am not yet prepared to accept the notion that normal rules of
law, procedure, and constitutional adjudication suddenly become
irrelevant solely because a case touches on the subject of
abortion. The majority's finding of fact that women in Missouri
will be unable to obtain abortions after the first trimester if the
saline method is banned is wholly unjustifiable.

															In any event, the point of § 9 is to change the practice under
which most abortions were performed under the saline amniocentesis
method, and to make the safer prostaglandin method generally
available. It promises to Page 428 U. S. 99 achieve that result if it remains operative, and the evidence
discloses that the result is a desirable one, or at least that the
legislature could have so viewed it. That should end our inquiry,
unless we purport to be not only the country's continuous
constitutional convention but also its ex officio medical
board with powers to approve or disapprove medical and operative
practices and standards throughout the United States. IV Section 6(1) of the Act provides:

															"No person who performs or induces an abortion shall fail to
exercise that degree of professional skill, care and diligence to
preserve the life and health of the fetus which such person would
be required to exercise in order to preserve the life and health of
any fetus intended to be born and not aborted. Any physician or
person assisting in the abortion who shall fail to take such
measures to encourage or to sustain the life of the child, and the
death of the child results, shall be deemed guilty of manslaughter.
. . . Further, such physician or other person shall be liable in an
action for damages."

															If this section is read in any way other than through a
microscope, it is plainly intended to require that, where a "fetus
[may have] the capability of meaningful life outside the mother's
womb," Roe v. Wade, 410 U.S. at 410 U. S. 163 ,
the abortion be handled in a way which is designed to preserve that
life notwithstanding the mother's desire to terminate it. Indeed,
even looked at through a microscope, the statute seems to go no
further. It requires a physician to exercise "that degree of
professional skill . . . to preserve the . . . fetus" which he
would be required to exercise if the mother wanted a live child.
Plainly, Page 428 U. S. 100 if the pregnancy is to be terminated at a time when there is no
chance of life outside the womb, a physician would not be required
to exercise any care or skill to preserve the life of the fetus
during abortion, no matter what the mother's desires. The statute
would appear then to operate only in the gray area after the fetus
might be viable, but while the physician is still able to certify
"with reasonable medical certainty that the fetus is not viable." See § 5 of the Act, which flatly prohibits abortions
absent such a certification. Since the State has a compelling
interest, sufficient to outweigh the mother's desire to kill the
fetus, when the "fetus . . . has the capability of meaningful life
outside the mother's womb," Roe v. Wade, supra, at 410 U. S. 163 ,
the statute is constitutional.

															Incredibly, the Court reads the statute instead to require "the
physician to preserve the life and health of the fetus, whatever
the stage of pregnancy," ante at 428 U. S. 83 ,
thereby attributing to the Missouri Legislature the strange
intention of passing a statute with absolutely no chance of
surviving constitutional challenge under Roe v. Wade,
supra. The Court compounds its error by also striking down as
unseverable the wholly unobjectionable requirement in the second
sentence of § 6(1) that, where an abortion produces a live child,
steps must be taken to sustain its life. It explains its result in
two sentences:

															"We conclude, as did the District Court, that § 6(1) must stand
or fall as a unit. Its provisions are inextricably bound
together." Ante at 428 U. S.
83 .

															The question whether a constitutional provision of state law is
severable from an unconstitutional provision is entirely a
question of the intent of the state legislature. There is not the
slightest reason to suppose that the Missouri Legislature would not
require proper care Page 428 U. S. 101 for live babies just because it cannot require physicians
performing abortions to take care to preserve the life of fetuses.
The Attorney General of Missouri has argued here that the only
intent of § 6(1) was to require physicians to support a live baby
which resulted from an abortion.

															At worst, § 6(1) is ambiguous on both points, and the District
Court should be directed to abstain until a construction may be had
from the state courts. Under no circumstances should § 6(1) be
declared unconstitutional at this point. [ Footnote 3/4 ] V I join the judgment and opinion of the Court insofar as it
upholds the other portions of the Act against constitutional
challenge.

															[ Footnote 3/1 ]

															There are countless situations in which the State prohibits
conduct only when it is objected to by a private person most
closely affected by it. Thus, a State cannot forbid anyone to enter
on private property with the owner's consent, but it may enact and
enforce trespass laws against unauthorized entrances. It cannot
forbid transfer of property held in tenancy by the entireties, but
it may require consent by both husband and wife to such a transfer.
These situations plainly do not involve delegations of legislative
power to private parties; and neither does the requirement in §
3(3) that a woman not deprive her husband of his future child
without his consent.

															[ Footnote 3/2 ]

															As MR. JUSTICE STEVENS states in his separate opinion, post at 428 U. S.
102 :

															"The State's interest in the welfare of its young citizens
justifies a variety of protective measures. Because he may not
foresee the consequences of his decision, a minor may not make an
enforceable bargain. He may not lawfully work or travel where he
pleases, or even attend exhibitions of constitutionally protected
adult motion pictures. Persons below a certain age may not marry
without parental consent. Indeed, such consent is essential even
when the young woman is already pregnant."

															[ Footnote 3/3 ]

															The absence of more evidence on the subject in the record seems
to be a result of the fact that the claim that the prostaglandin
method is unavailable was not part of plaintiffs' litigating
strategy below.

															[ Footnote 3/4 ]

															The majority's construction of state law is, of course, not
binding on the Missouri courts. If they should disagree with the
majority's reading of state law on one or both of the points
treated by the majority, the State could validly enforce the
relevant parts of the statute -- at least against all those people
not parties to this case. Cf. Dombrowski v. Pfister, 380 U. S. 479 , 380 U. S. 492 (1965).

															MR. JUSTICE STEVENS, concurring in part and dissenting in
part.

															With the exception of Parts IV-D and IV-E, I join the Court's
opinion.

															In Roe v. Wade, 410 U. S. 113 , the
Court held that a woman's right to decide whether to abort a
pregnancy is entitled to constitutional protection. That decision,
which is now part of our law, answers the question discussed in
Part IV-E of the Court's opinion, but merely poses the question
decided in Part IV-D.

															If two abortion procedures had been equally accessible to
Missouri women, in my judgment, the United States Constitution
would not prevent the state legislature Page 428 U. S. 102 from outlawing the one it found to be less safe even though its
conclusion might not reflect a unanimous consensus of informed
medical opinion. However, the record indicates that, when the
Missouri statute was enacted, a prohibition of the saline
amniocentesis procedure was almost tantamount to a prohibition of
any abortion in the State after the first 12 weeks of pregnancy.
Such a prohibition is inconsistent with the essential holding of Roe v. Wade, and therefore cannot stand.

															In my opinion, however, the parental consent requirement is
consistent with the holding in Roe. The State's interest
in the welfare of its young citizens justifies a variety of
protective measures. Because he may not foresee the consequences of
his decision, a minor may not make an enforceable bargain. He may
not lawfully work or travel where he pleases, or even attend
exhibitions of constitutionally protected adult motion pictures.
Persons below a certain age may not marry without parental consent.
Indeed, such consent is essential even when the young woman is
already pregnant. The State's interest in protecting a young person
from harm justifies the imposition of restraints on his or her
freedom even though comparable restraints on adults would be
constitutionally impermissible. Therefore, the holding in Roe
v. Wade that the abortion decision is entitled to
constitutional protection merely emphasizes the importance of the
decision; it does not lead to the conclusion that the state
legislature has no power to enact legislation for the purpose of
protecting a young pregnant woman from the consequences of an
incorrect decision.

															The abortion decision is, of course, more important than the
decision to attend or to avoid an adult motion picture, or the
decision to work long hours in a Page 428 U. S. 103 factory. It is not necessarily any more important than the
decision to run away from home or the decision to marry. But even
if it is the most important kind of a decision a young person may
ever make, that assumption merely enhances the quality of the
State's interest in maximizing the probability that the decision be
made correctly, and with full understanding of the consequences of
either alternative.

															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.

															If there is no parental consent requirement, many minors will
submit to the abortion procedure without ever informing their
parents. An assumption that the parental reaction will be hostile,
disparaging, or violent no doubt persuades many children simply to
bypass parental counsel which would, in fact, be loving,
supportive, and, indeed, for some indispensable. It is unrealistic,
in my judgment, to assume that every parent-child relationship is
either (a) so perfect that communication and accord will take place
routinely or Page 428 U. S. 104 (b) so imperfect that the absence of communication reflects the
child's correct prediction that the parent will exercise his or her
veto arbitrarily to further a selfish interest, rather than the
child's interest. A state legislature may conclude that most
parents will be primarily interested in the welfare of their
children, and further, that the imposition of a parental consent
requirement is an appropriate method of giving the parents an
opportunity to foster that welfare by helping a pregnant distressed
child to make and to implement a correct decision.

															The State's interest is not dependent on an estimate of the
impact the parental consent requirement may have on the total
number of abortions that may take place. I assume that parents will
sometimes prevent abortions which might better be performed; other
parents may advise abortions that should not be performed.
Similarly, even doctors are not omniscient; specialists in
performing abortions may incorrectly conclude that the immediate
advantages of the procedure outweigh the disadvantages which a
parent could evaluate in better perspective. In each individual
case, factors much more profound than a mere medical judgment may
weigh heavily in the scales. The overriding consideration is that
the right to make the choice be exercised as wisely as
possible.

															The Court assumes that parental consent is an appropriate
requirement if the minor is not capable of understanding the
procedure and of appreciating its consequences and those of
available alternatives. This assumption is, of course, correct and
consistent with the predicate which underlies all state legislation
seeking to protect minors from the consequences of decisions they
are not yet prepared to make. In all such situations, chronological
age has been the basis for imposition of a restraint on the minor's
freedom of choice even though Page 428 U. S. 105 it is perfectly obvious that such a yardstick is imprecise, and
perhaps even unjust in particular cases. The Court seems to assume
that the capacity to conceive a child and the judgment of the
physician are the only constitutionally permissible yardsticks for
determining whether a young woman can independently make the
abortion decision. I doubt the accuracy of the Court's empirical
judgment. Even if it were correct, however, as a matter of
constitutional law I think a State has power to conclude otherwise,
and to select a chronological age as its standard.

															In short, the State's interest in the welfare of its young
citizens is sufficient, in my judgment, to support the parental
consent requirement.

Summary: In *Planned Parenthood v. Danforth*, the U.S. Supreme Court ruled on the constitutionality of several provisions within Missouri's abortion statute. The Court upheld most provisions, including those requiring informed consent from the pregnant woman, spousal consent for abortions during the first 12 weeks, and parental consent for unmarried minors under 18. The Court also allowed the prohibition of the abortion procedure of saline amniocentesis after the first 12 weeks and prescribed reporting and record-keeping requirements. However, it struck down the provision requiring physicians to exercise professional care to preserve fetal life and health, deeming it "unconstitutionally overbroad." The Court did not rule on the constitutionality of a section declaring an infant who survives an abortion as a ward of the state. The case affirmed the standing of physicians to challenge abortion regulations and highlighted the state's interest in protecting minors and fostering parental involvement in abortion decisions.