NetNews Usenet Archive 1992 #31

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Path: sparky!uunet!gatech!rpi!crdgw1!rdsunx.crd.ge.com!pan!keegan From: keegan@pan.crd.ge.com (James G Keegan Jr) Newsgroups: talk.abortion Subject: t.a. FAQ (part 3 of 3) Message-ID: <1992Dec30.233411.21897@crd.ge.com> Date: 30 Dec 92 23:34:11 GMT Sender: usenet@crd.ge.com (Required for NNTP) Reply-To: keegan@crd.ge.com Organization: "T.S.A.K.C" Lines: 975 Nntp-Posting-Host: pan.crd.ge.com From rdsunx.crd.ge.com!crdgw1!rpi!uwm.edu!spool.mu.edu!caen!nic.umass.edu!nic c.umass.edu!ejones Sun Jun 14 20:41:51 EDT 1992 Article: 10306 of talk.abortion Xref: rdsunx.crd.ge.com talk.abortion:10306 news.answers:837 Path: rdsunx.crd.ge.com!crdgw1!rpi!uwm.edu!spool.mu.edu!caen!nic.umass.edu!nic c.umass.edu!ejones From: ejones@umassmed.ummed.edu Newsgroups: talk.abortion,news.answers Subject: talk.abortion FAQ 3/3 [DECISIONS] Message-ID: <EJONES.92Jun12113146@umassmed.ummed.edu> Date: 12 Jun 92 16:31:46 GMT Expires: Wed, 1 Jul 1992 00:00:00 GMT Sender: usenet@nic.umass.edu (USENET News System) Reply-To: ejones@umassmed.ummed.edu Followup-To: poster Nntp-Posting-Host: umassmed.ummed.edu Content-Length: 54361 X-Lines: 952 Status: O Archive-name: abortion/part3 Last-modified: June 13, 1992 *(Note: Diff markers (*) have been added to make scanning this document *much easier for those who have seen it before.) In an attempt to make a fair FAQ for this group, I've come up with the following document. I hope you'll find the FAQ fair and impartial, without any references to actions on one side that don't include a similar action on the other side. This FAQ is updated every month, and I continue to read any and all comments sent to me. Make your comments to me as specific as possible, even to the point of writing whole paragraphs tha you would like to see in there. I would like to make this FAQ a true group FAQ, with contributions from as many people as possible. This is the third of the three documents, which contains texts of relevant Supreme Court decisions on abortion. The first document is the FAQ itself. The second document is of relevant texts regarding abortion. All three documents will always be posted at the same time, on the first and the fifteenth of each month. Thank you to everyone who helped create this FAQ. I sincerely appreciate the time and effort that you all put in on it. Erik Jones ejones@umassmed.ummed.edu ************************************************************************* FREQUENTLY ASKED QUESTIONS ON TALK.ABORTION DOCUMENT THREE (OF THREE): SUPREME COURT DECISIONS TABLE OF CONTENTS ----------------- 1 - The 1973 Roe v. Wade Decision Edited opinion of Justice Blackmun. 2 - The Doe v. Bolton Decision Summarized by Don Porter 3 - The 1991 Rust v. Sullivan Decision AKA The Gag Rule Synopsis from Project Hermes 4 - The 1990 Ohio v. Akron Center for Reproductive Health Syllabus from the Reporter of Decisions --------------------------------------------------------------------------- THE 1973 ROE V. WADE DECISION Please note that the Roe decision here is not complete. I have included what was sent to me, and I feel that the disadvantages of a larger document outweigh the advantages of including the full text of the Roe v. Wade decision. Many thanks to Don Porter, who forwarded the text as originally posted by Patt Haring. 410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147 (1973) Justice Blackmun delivered the opinion of the Court, saying: V. The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appel- lant would discover this right in the concept of personal "lib- erty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its prenumbras, see Griswold v. Connecticut (1965); Eisenstadt v. Baird (1972); (White, J., con- curring); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut (Goldberg, J., concur- ring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws. VI. It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of an- cient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.... It is... apparent that at common law, at the time of the adoption of out Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a preg- nancy that she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law con- tinued for sometime to treat less punitively an abortion procured in early pregnancy... VII. Three reasons have been advanced to explain historically the en- actment of criminal abortion laws in the 19th century and to jus- tify their continued existence. It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. The appellants and amici contend, moreover, that this is not a proper state purpose at all and sug- gest that, if it were, the Texas statutes are overbroad in pro- tecting it since the law fails to distinguish between married and unwed mothers. A second reason is concerned with abortion as a medical pro- cedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and oth- ers first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the devel- opment of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus it has been argued that a State's real concern in en- acting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy. Modern medical techniques have altered this situation. Appel- lants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. Consequently, any interest of the State in protecting the woman from an inherently hazardous proce- dure, except when it would be equally dangerous for her to forego it, has largely disappeared. Of course, important state interests in the area of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that in- sure maximum safety for the patient. This interest obviously ex- tends at least to the performing physician and his staff, to the facilities involved, to the availability of aftercare, and to ad- equate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens, rather than weaken's, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy contin- ues. Thus the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy. The third reason is the State's interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate State interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as a least POTENTIAL life is involved, the State may assert interests beyond the protection of the pregnant woman alone. Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when en- acted, was to protect prenatal life. Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of ori- ginal purpose. The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus. It is with these interests, and the weight to be attached to them, that this case is concerned. VIII. The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts the Court or individual Justices have indeed found at least the roots of that right in the First Amendment, Stanley v. Georgia (1969); in the Fourth and Fifth Amendments, Terry v. Ohio (1968), Katz v. United States (1967)...; in the penumbras of the Bill of Rights, Griswold v. Connecticut (1965); in the Ninth Amendment; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut (1937), are included in this guar- antee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia (1967), procreation, Skinner v. Oklahoma (1942), contra- ception, Eisenstadt v. Baird (1972), family relationships, child rearing and education... This right of privacy, whether it be founded in the Four- teenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court de- termined, in the Ninth Amendment's reservation of the rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diag- nosable even in early pregnancy may be involved. Maternity, or ad- ditional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the dis- tress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already un- able, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. On the basis of elements such as these, appellants and some amici argue that the woman's right is absolute and that she is en- titled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellants' arguments that Texas either has no valid interest at all in regulating the abortion decision, or no inter- est strong enough to support any limitation upon the woman's sole determination, is unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting poten- tial life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the fac- tors that govern the abortion decision. The privacy right in- volved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts (1905) (vaccination); Buck v. Bell (1927) (sterilization). We therefore conclude that the right of personal privacy in- cludes the abortion decision, but that this right is not un- qualified and must be considered against {important} state interests in regulation. Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," Kramer v. Union Free School District (1969), Shapiro v. Thompson (1969),...and that legisla- tive enactments must be narrowly drawn to express only the le- gitimate state interests at stake. Griswold v. Connecticut (1965)... We note that those federal and state courts that have recent- ly considered abortion law challenges have reached the same con- clusion... Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state's interests as to protection of health, medical standards, and parental life, become dominant. We agree with this approach. IX. The District Court held that the appellee failed to meet his bur- den of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest....Appellee argues that the State's determination to rec- ognize and protect prenatal life from and after conception consti- tutes a compelling state interest. As noted above, we do not agree fully with either formulation. A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amend- ment. In support of this they outline at length and in detail the well-known facts of fetal development. If this suggestion of per- sonhood is established, the appellant's case, of course, col- lapses, for the fetus' right to life is then guaranteed spe- cifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution....But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assur- ance, that it has any possible prenatal application. All this, together with our observation, that throughout the major portion of the 19th century prevailing legal abortion prac- tices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not in- clude the unborn.... Indeed, our decision in United States v. Vuitch (1971) inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection. B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus...The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procre- ation, or education, with which Eisenstadt, Griswold, Stanley, Loving, Skinner, Pierce, and Meyer were respectively concerned. As we have intimated above, it is 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. Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the dif- ficult question of when life begins. When those trained in the re- spective disciplines of medicine, philosophy, and theology are un- able to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception or upon live birth or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artifical aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks... In areas other than criminal abortion the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. ... In short, the unborn have never been recognized in the law as persons in the whole sense. X. In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an im- portant and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treat- ment there, and that it has still ANOTHER important and legitimate interest in protecting the potentiality of human life. These in- terests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling." With respect to the State's important and legitimate interest in the health of the mother, the compelling point, in light of the present medical knowledge, is at approximately the end of the first trimester. This is so because of the now established medical fact, referred to above...that until the end of the first trimes- ter mortality in abortion is less than mortality in normal child- birth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to per- form the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the fa- cility; and the like. This means, on the other hand, that, for the period of preg- nancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of mean- ingful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother. Measured against these standards, the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abor- tions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the le- gal justification for the procedure. The statute, therefore, can- not survive the constitutional attack made upon it here.... To summarize and repeat: 1. A state criminal abortion statute of the current Texas type, that excerpts from criminality only a *life saving* procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. (a) 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. (b) For the stage subsequent to approximately the end of the first trimester, 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. (c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 2. The State may define the term "physician," as it has been employed [here], to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions on abortion are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intraprofessional, are available. ------------------------------------------------------------------------ The justices in the Roe vs Wade decision: Voting for Roe (7): Name Term President ---- ---- --------- William O. Douglass 1939-75 Roosevelt William J. Brennan 1956-90 Eisenhower Potter Stewart 1958-81 Eisenhower Thurgood Marshal 1967-91 Johnson Warren E. Burger 1969-86 Nixon Harry A. Blackmun 1970- Nixon Lewis F. Powell Jr 1972-87 Nixon Voting against Roe (2): Byron R. White 1962- Kennedy William H. Renquist 1972- Nixon Other Notes: Burger was the Chief Justice. Blackmun wrote the majority decision. ---------------------------------------------------------- DOE v. BOLTON (Summary written by Don Porter) The citation is either 410 US 179 or 93 S. Ct. 739 for those who want to look it up for themselves. Most of the controversy seems to center around this paragraph: "We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman." THE LAW IN QUESTION: A section of the Georgia Criminal Code (AARGH, I forgot to write down the section number -- sorry.) adopted in 1968 proscribed abortion except in cases where a licensed physician acting on his best medical judgment found that continuing pregnancy would endanger the woman's life, would injure her health, would likely result in the birth of a child with a grave, irremediable defect, or the pregnancy was a result of forcible or statutory rape. The law required that the woman in question be a Georgia resident. Further, it contained three specific procedural requirements: 1) The abortion must be performed in a state-accredited hospital. 2) The abortion must be approved by the hospital's abortion committee. 3) The attending physician's medical judgment must be confirmed by independent examinations of the patient by at least two other physicians. Prior to 1968, Georgia law prohibited all abortions except those necessary to save the life of the mother. When defending the statute in District Court, Georgia officials claimed that the State interest in the new law was the same as in the old -- the health and welfare of women who might seek an abortion. THE WOMAN WHO BROUGHT THE CASE TO COURT: The appellant "Mary Doe" was a 22 year-old Georgia resident, married, with three living children. Two of these children were in foster care; the youngest had been placed for adoption. Her husband had abandoned her, leaving her to live with her indigent parents and their eight children. She and her husband had recently reconciled. He was sporadically employed in construction. She had been a patient in the State mental hospital. She had been informed that an abortion would represent less risk to her health than carrying the pregnancy to term, and she was unable to care for a child. Doe applied for abortion approval on March 25, 1970. Her application was denied on April 10, 1970, on the grounds that she did not meet the requirements of the statute. At the time of this denial, Doe was eight weeks pregnant. On April 16, 1970, she sought relief in the courts. DOE'S ARGUMENTS: Doe argued that the requirement that a physician use "his best medical judgment" was unconstitutionally vague since it gave the physician no clear indication of what acts would be violations of the statute. Doe further argued that her own privacy rights were being violated by the statute, citing Griswold v. Connecticut as precedent. The District Court ruled in Doe's favor and struck down parts of the law (I didn't write down the details of which parts.) Doe wanted further relief, and appealed to the Supreme Court. WHAT THE SC DECISION RULED: The "best medical judgment...would injure health" language is acceptable. It is not unconstitutionally vague. Physicians are professionals trained to make medical judgments concerning the health of their patients. The language means exactly what it says, and physicians are specially trained to know what "would injure health" and what constitutes sound medical judgment. (It is here in the decision that the "controversial" paragraph appears. The opinion in the controversial paragraph was also in the District Court decision. The Supreme Court was just agreeing here with the decision of the lower court.) The three specific procedural requirements are unconstitutional under the Fourteenth Amendment's Due Process Clause, read in the light of Roe v. Wade's precedent that the right to an abortion is fundamental, requiring a compelling state interest to justify regulation, and regulations narrowly tailored to serve only the compelling state interests. The procedural requirements did not pass these tests. The residency requirement is an unconstitutional violation of the Privileges and Immunities clause (either Article IV, Section 2, or 14th Amendment, Section 1 -- I'm not sure which.) SOME IMPRESSIONS: 1) The controversial paragraph seems to me to be more a statement about physicians' rights and privileges than about women's rights. 2) The combination of Georgia's claimed state interest -- protecting the health and welfare of women -- and the focus in the controversial paragraph on the benefit that physician freedom provides toward that interest makes me wonder how applicable this case truly is to the third trimester. The Roe v Wade decision found that the State may claim a compelling interest in the potential life of the fetus in the third trimester of pregnancy. Thus, in third trimester situations, Georgia could have claimed a second interest in the fetus in addition to their stated interest in the health of the mother. With this additional compelling state interest factored in, the broad interpretation of health in DvB might not be an appropriate balancing of all the interests and rights involved. On these grounds, I think DvB probably does not serve as a precedent for third trimester situations, particularly since it addressed a first trimester situation. Thus, I think that the claims of pro-life literature, though grounded in fact, may be an overextension of a precedent to cases where it may not apply. 1991 RUST v. SULLIVAN DECISION No. 89-1391. Argued October 30, 1990 -- Decided May 23, 1991 {1} SYNOPSIS: Section 1008 of the Public Health Service Act specifies that none of the federal funds appropriated under the Act's Title X for family-planning services "shall be used in programs where abortion is a method of family planning." In 1988, respondent Secretary of Health and Human Services issued new regulations that, inter alia, prohibit Title X projects from engaging in counseling concerning, referrals for, and activities advocating abortion as a method of family planning, and require such projects to maintain an objective integrity and independence from the prohibited abortion activities by the use of separate facilities, personnel, and accounting records. Before the regulations could be applied, petitioners -- Title X grantees and doctors who supervise Title X funds -- filed suits, which were consolidated, challenging the regulations' facial validity and seeking declaratory and injunctive relief to prevent their implementation. In affirming the District Court's grant of summary judgment to the Secretary, the Court of Appeals held that the regulations were a permissible construction of the statute and consistent with the First and Fifth Amendments. Held: 1. The regulations are a permissible construction of Title X. Pp. 615. (a) Because MDRV 1008 is ambiguous in that it does not speak directly to the issues of abortion counseling, referral, and advocacy, or to "program integrity," the Secretary's construction must be accorded substantial deference as the interpretation of the agency charged with administering the statute, and may not be disturbed as an abuse of discretion if it reflects a plausible construction of the statute's plain language and does not otherwise conflict with Congress' expressed intent. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-844. Pp. 7-8. (b) Title X's broad language plainly allows the abortion counseling, referral, and advocacy regulations. Since the Title neither defines MDRV 1008's "method of family planning" phrase nor enumerates what types of medical and counseling services are entitled to funding, it cannot be said that the Secretary's construction of the MDRV 1008 prohibition to require a ban on such activities within Title X projects is impermissible. Moreover, since the legislative history is ambiguous as to Congress' intent on these issues, this Court will defer to the Secretary's expertise. Petitioners' contention, that the regulations are entitled to little or no deference because they reverse the Secretary's longstanding policy permitting nondirective counseling and referral for abortion, is rejected. Because an agency must be given ample latitude to adapt its rules to changing circumstances, a revised interpretation may deserve deference. The Secretary's change of interpretation is amply supported by a "reasoned analysis" indicating that the new regulations are more in keeping with the statute's original intent, are justified by client experience under the prior policy, and accord with a shift in attitude against the "elimination of unborn children by abortion." Pp. 8-11. (c) The regulations' "program integrity" requirements are not inconsistent with Title X's plain language. The Secretary's view, that the requirements are necessary to ensure that Title X grantees apply federal funds only to authorized purposes and avoid creating the appearance of governmental support for abortion-related activities, is not unreasonable in light of MDRV 1008's express prohibitory language and is entitled to deference. Petitioners' contention is unpersuasive that the requirements frustrate Congress' intent, clearly expressed in the Act and the legislative history, that Title X programs be an integral part of a broader, comprehensive, health-care system that envisions the efficient use of nonTitle X funds. The statements relied on are highly generalized and do not directly address the scope of MDRV 1008 and, therefore, cannot form the basis for enjoining the regulations. Indeed, the legislative history demonstrates that Congress intended that Title X funds be kept separate and distinct from abortion-related activities. Moreover, there is no need to invalidate the regulations in order to save the statute from unconstitutionality, since petitioners' constitutional arguments do not carry the day. Pp. 11-15. 2. The regulations do not violate the First Amendment free speech rights of private Title X fund recipients, their staffs, or their patients by impermissibly imposing viewpoint-discriminatory conditions on Government subsidies. There is no question but that MDRV 1008's prohibition is constitutional, since the Government may make a value judgment favoring childbirth over abortion, and implement that judgment by the allocation of public funds. Maher v. Roe, 432 U. S. 464, 474. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another. Similarly, in implementing the statutory prohibition by forbidding counseling, referral, and the provision of information regarding abortion as a method of family planning, the regulations simply ensure that appropriated funds are not used for activities, including speech, that are outside the federal program's scope. Arkansas Writers' Project, Inc. v. Rag land, 481 U. S. 221, distinguished. Petitioners' view that if the Government chooses to subsidize one protected right, it must subsidize analogous counterpart rights, has been soundly rejected. See, e. g., Regan v. Taxation With Representation of Wash., 461 U. S. 540. On their face, the regulations cannot be read, as petitioners contend, to bar abortion referral or counseling where a woman's life is placed in imminent peril by her pregnancy, since it does not seem that such counseling could be considered a "method of family planning" under MDRV 1008, and since provisions of the regulations themselves contemplate that a Title X project could engage in otherwise prohibited abortion-related activities in such circumstances. Nor can the regulations' restrictions on the subsidization of abortion-related speech be held to unconstitutionally condition the receipt of a benefit, Title X funding, on the relinquishment of a constitutional right, the right to engage in abortion advocacy and counseling. The regulations do not force the Title X grantee, or its employees, to give up abortion-related speech; they merely require that such activities be kept separate and distinct from the activities of the Title X project. FCC v. League of Women Voters of Cal., 468 U. S. 364, 400; Regan, supra, at 546, distinguished. Although it could be argued that the traditional doctor-patient relationship should enjoy First Amendment protection from Government regulation, even when subsidized by the Government, cf., e. g., United States v. Kokinda, 497 U. S. ---, ---, that question need not be resolved here, since the Title X program regulations do not significantly impinge on the doctor-patient relationship. Pp. 15-24. 3. The regulations do not violate a woman's Fifth Amendment right to choose whether to terminate her pregnancy. The Government has no constitutional duty to subsidize an activity merely because it is constitutionally protected and may validly choose to allocate public funds for medical services relating to childbirth but not to abortion. Webster v. Reproductive Health Services, 492 U. S. ---, ---. That allocation places no governmental obstacle in the path of a woman wishing to terminate her pregnancy and leaves her with the same choices as if the Government had chosen not to fund family-planning services at all. See, e. g., Harris v. McRae, 448 U. S. 297, 315, 317; Webster, supra, at ---. Nor do the regulations place restrictions on the patient/doctor dialogue which violate a woman's right to make an informed and voluntary choice under Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, and Thornburg v. American College of Obstetricians and Gynecologists, 476 U. S. 747. Unlike the laws invalidated in those cases, which required all doctors to provide all pregnant patients contemplating abortion with specific antiabortion information, here, a doctor's ability to provide, and a woman's right to receive, abortion-related information remains unfettered outside the context of the Title X project. The fact that most Title X clients may be effectively precluded by indigency from seeing a health-care provider for abortion-related services does not affect the outcome here, since the financial constraints on such a woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions, but of her indigency. McRae, supra, at 316. Pp. 24-27. Rehnquist, C. J., delivered the opinion of the Court, in which White, Kennedy, Scalia, and Souter, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Marshall, J., joined; in Part I of which O'Connor, J., joined; and in Parts II and III of which Stevens, J., joined. Stevens, J., and O'Connor, J., filed dissenting opinions. 1990 OHIO V. AKRON CENTER FOR REPRODUCTIVE HEALTH ET AL. DECISION Many thanks to Kevin Darcy for forwarding this information to me. No. 88-805. Argued November 29, 1989--Decided June 25, 1990 As enacted, Ohio's Amended Substitute House Bill 319 (H. B. 319) makes it a crime for a physician or other person to perform an abortion on an unmarried, unemancipated, minor woman, unless, inter alia, the physician provides timely notice to one of the minor's parents or a juvenile court issues an order authorizing the minor to consent. To obtain a judicial bypass of the notice requirement, the minor must present clear and convincing proof that she has sufficient maturity and information to make the abortion decision herself, that one of her parents has engaged in a pattern of physical, emotional, or sexual abuse against her, or that notice is not in her best interests. Among other things, H. B. 319 also allows the physician to give constructive notice if actual notice to the parent proves impossible ``after a reason- able effort''; requires the minor to file a bypass complaint in the juvenile court on prescribed forms; requires that court to appoint a guardian ad litem and an attorney for the minor if she has not retained counsel; mandates expedited bypass hearings and decisions in that court and expedited review by a court of ap- peals; provides constructive authorization for the minor to con- sent to the abortion if either court fails to act in a timely fashion; and specifies that both courts must maintain the minor's anonymity and the confidentiality of all papers. Shortly before H. B. 319's effective date, appellees--an abortion facility, one of its doctors, and an unmarried, unemancipated, minor woman seeking an abortion there--and others filed a facial challenge to the statute's constitutionality in the Federal District Court, which ultimately issued an injunction preventing H. B. 319's en- forcement. The Court of Appeals affirmed, concluding that vari- ous of the statute's provisions were constitutionally defective. Held: The judgment is reversed. 854 F. 2d 852, reversed. JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, II, III, and IV, concluding that, on its face, H. B. 319 does not impose an undue, or otherwise unconstitutional, bur- den on a minor seeking an abortion. Pp. 4-14. 1. House Bill 319 accords with this Court's cases addressing the constitutionality of parental notice or consent statutes in the abortion context. Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52; Bellotti v. Baird, 443 U. S. 622; H. L. v. Matheson, 450 U. S. 398; Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476; Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416. Pp. 4-11. (a) Whether or not the Fourteenth Amendment requires parental notice statutes, as opposed to parental consent statutes, to con- tain judicial bypass procedures, H. B. 319's bypass procedure is sufficient because it meets the requirements identified in Dan- forth, Bellotti, Ashcroft, and Akron for the more intrusive con- sent statutes, particularly the four criteria set forth by the plurality in Bellotti, supra, at 643-644. First, the statute sa- tisfies the requirement that the minor be allowed to show the ma- turity to make her abortion decision without regard to her parents' wishes. Second, by requiring the juvenile court to au- thorize her consent upon determining that the abortion is in her best interests and in cases where she has shown a pattern of abuse, H. B. 319 satisfies the requirement that she be allowed to show that, even if she cannot make the decision by herself, the abortion would be in her best interests. Third, the requirement that a bypass procedure ensure the minor's anonymity is satis- fied, since H. B. 319 prohibits the juvenile court from notifying the parents that the complainant is pregnant and wants an abor- tion and requires both state courts to preserve her anonymity and the confidentiality of court papers, and since state law makes it a crime for any state employee to disclose documents not desig- nated as public records. Neither the mere possibility of unau- thorized, illegal disclosure by state employees nor the fact that the H. B. 319 complaint forms require the minor to provide iden- tifying information for administrative purposes is dispositive. Complete anonymity is not critical under this Court's decisions, and H. B. 319 takes reasonable steps to prevent the public from learning of the minor's identity. Fourth, H. B. 319's time lim- its on judicial action satisfy the requirement that a bypass pro- cedure be conducted with expedition. Even if, as appellees con- tend, the bypass procedure could take up to 22 calendar days, in- cluding weekends and legal holidays, that possibility does not suffice to invalidate the statute on its face. See, e. g., Ash- croft, supra, at 477, n. 4, 491, n. 16. Pp. 5-9. (b) The Bellotti criteria need not be extended by imposing ap- pellees' suggested additional requirements on bypass procedures. First, H. B. 319 is not rendered unconstitutional by the fact that its constructive authorization provisions do not require an affirmative order authorizing the physician to act in the event that either state court fails to act within the prescribed time limits. Absent a showing that those limits will be ignored, the State may expect that its judges will follow mandated procedural requirements. Moreover, Ashcroft, supra, at 479-480, n. 4, does not require constructive authorization provisions, which were ad- ded by Ohio out of an abundance of caution and concern for the minor's interests. Second, a bypass procedure such as Ohio's does not violate due process by placing the burden of proof on the issues of maturity or best interests on the minor or by re- quiring a heightened, clear and convincing evidence standard of proof. The plurality in Bellotti, supra, at 634, indicated that a State may require the minor to bear the burden of proof on these issues. Moreover, a State may require a heightened stan- dard of proof when, as here, the bypass procedure contemplates an ex parte proceeding at which no one opposes the minor's testimony and she is assisted by an attorney and a guardian ad litem. Third, H. B. 319's statutory scheme and the bypass complaint forms do not deny an unwary and unrepresented minor the opportun- ity to prove her case by requiring her to chose among three forms, the first of which relates only to maturity, the second to best interests, and the third to both. Even assuming some ini- tial confusion, it is unlikely that the Ohio courts will treat a minor's choice of forms without due care and understanding for her unrepresented status. Moreover, she does not make a binding election by her initial form choice, since H. B. 319 provides her with appointed counsel after filing the complaint and allows her to move to amend the pleadings. Pp. 9-11. 2. Even assuming that H. B. 319 gives a minor a substantive, state-law liberty or property right ``to avoid unnecessary or hostile parental involvement'' upon proof of maturity or best in- terests, the statute does not deprive her of this right without due process, since its confidentiality provisions, expedited pro- cedures, pleading form requirements, clear and convincing evi- dence standard, and constructive authorization provisions are valid on their face. Pp. 12-13. 3. House Bill 319 is not facially invalid simply because it re- quires parental notice to be given by the physician rather than by some other qualified person. Since the physician has a supe- rior ability to garner and use important medical and psychologi- cal data supplied by a parent upon receiving notice, a State may require the physician himself to take reasonable steps to notify the parent. See Matheson, supra, at 400, 411. In addition, the conversation with an experienced and detached physician may as- sist the parent in approaching the problem in a mature and bal- anced way and thereby enable him to provide better advice to the minor than would a conversation with a less experienced person. Any imposition on the physician's schedule is diminished by pro- visions allowing him to give notice by mail if he cannot reach the parent ``after a reasonable effort'' and to forgo notice in the event of certain emergencies, which provisions constitute an adequate recognition of his professional status. Akron, supra, at 446-449, distinguished. Pp. 13-14. JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA, concluded in Part V that H. B. 319 consti- tutes a rational way to further legitimate ends. A free and en- lightened society may decide that each of its members should at- tain a clearer, more tolerant understanding of the profound phi- losophic choices confronting a woman considering an abortion, which decision will affect her own destiny and dignity and the origins of the other human life within the embryo. It is both rational and fair for the State to conclude that, in most in- stances, the beginnings of that understanding will be within the family, which will strive to give a lonely or even terrified minor advice that is both compassionate and mature. Pp. 14-15. JUSTICE STEVENS, agreeing that H. B. 319 is not unconstitution- al on its face, concluded that, in some of its applications, the one-parent notice requirement will not reasonably further the State's legitimate interest in protecting the welfare of its minor citizens. The question whether the judicial bypass is so obviously inadequate for such exceptional situations that the en- tire statute should be invalidated must await the statute's im- plementation and the evaluation of the significance of its res- trictions in light of its administration. The State must provide an adequate mechanism for avoiding parental notification for cases in which the minor is mature or notice would not be in her best interests. See Akron v. Akron Center for Reproductive Health, 462 U. S. 416, 441, n. 31. Pp. 1-3. KENNEDY, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III, and IV, in which REHNQUIST, C. J., and WHITE, STEVENS, O'CONNOR, and SCALIA, JJ., joined, and an opinion with respect to Part V, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined. SCALIA, J., filed a concurring opinion. STEVENS, J., filed an opinion concurring in part and concurring in the judgment. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined. ******************************************************************************