SUPREME COURT OF THE UNITED STATES


      JOSEPH P. MAZUREK, ATTORNEY GENERAL OF MONTANA v. JAMES H. ARMSTRONG
                                                     __
                                     ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
                          APPEALS FOR THE NINTH CIRCUIT
                       No. 96-1104.  Decided June 16, 1997

  PER CURIAM.
  In 1995, the Montana Legislature enacted a statute restricting the performance
of abortions to licensed physicians.  1995 Mont. Laws, ch. 321, S2 (codified at
Mont. Code Ann. S50-20-109 (1995)).  Similar rules exist in 40 other States in
the Nation. (Ftnote. 1)  The Montana
            (Ftnote. 1)

                    
____________________

   1)   See Ala. Admin. Code Rules 420-5-1-.01(2)(k), 420-5-1-.03(2)(a) (Supp.
   1)  
1990) (limiting performance of abortions to "physicians duly licensed in the
State of Alabama," which in turn requires meeting the criteria in Ala. Code
S34-24-70 (Supp. 1996)); Alaska Stat. Ann. SS08.64.200, 18.16.010(a)(1) (1996);
Ark. Code Ann. S5-61-101(a) (1993); id., S17-95-403 (1995); Cal. Health & Safety
                                    ___
Code Ann. S123405 (West 1996) (as interpreted under prior statutory designation
in 74 Op. Cal. Atty. Gen. 101 (1991)); Colo. Rev. Stat. S12-36-107 (Supp. 1996);
id., SS18-6-101(1), 18-6-102 (1986); Conn. Agencies Regs. S19-13-D54(a) (1997)
___
(limiting performance of abortions to "person[s] licensed to practice medicine
and surgery in the State of Connecticut," which in turn requires meeting the
criteria in Conn. Gen. Stat. S20-10 (Supp. 1997)); Del. Code. Ann., Tit. 24,
SS1720, 1790(a) (Supp. 1996); Fla. Stat. Ann. SS390.001(1)(a), 390.001(3)
(1993); id., SS458.311, 459.0055 (1991 and Supp. 1997); Ga. Code Ann.
        ___
S16-12-141(a) (1996); id., S43-34-27 (1994); Haw. Rev. Stat. SS453-4,
                      ___
453-16(a)(1) (1993); Idaho Code S18-608 (1997); id., SS54-1803(3), 54-1803(4)
                                                ___
(1994); Ill. Comp. Stat., ch. 225, S60/11 (1993); id., ch. 720, SS510/2(2),
                                                  ___
510/3.1 (1993); Ind. Code. SS16-18-2-202, 16-18-2-282, 16-34-2-1(1)(A) (1993);
id., S25-22.5-3-1 (1995); Iowa Code SS148.3, 707.7 (Supp. 1997); Ky. Rev. Stat.
___
Ann. SS311.571, 311.750 (Michie 1995); La. Rev. Stat. Ann. S37:1272 (West Supp.
1997); id., SS40:1299.35.1, 40.1299.35.2(A) (West 1992); Me. Rev. Stat. Ann.,
       ___
Tit. 22, S1598(3)(A) (1992); id., Tit. 32, SS2571, 3271 (Supp. 1996); Md. Health
                             ___
Code Ann. S20-208 (1996); Md. Health Occ. Code Ann. S14-307 (Supp. 1995); Mass.
Gen. Laws, ch. 112, SS2, 12K, 12L, 12M (1996); Minn. Stat. SS145.412, subd.
1(1), 147.02 (1989) (limiting performance of abortions to licensed physicians
and "physician[s] in training under the supervision of . . . licensed physi-
cian[s]"); Miss. Code Ann. S73-25-3 (1995); id., S97-3-3(1) (1994) (as
                                            ___
interpreted in Spears v. State, 278 So. 2d 443 (Miss. 1973)); Mo. Rev. Stat.
               ______    _____
SS188.015(5), 188.020 (1996); id., S334.031 (1989); Neb. Rev. Stat. S28-335
                              ___
(1995); id., S71-1,104 (Supp. 1996); Nev. Rev. Stat. S442.250(1)(a) (1991); id.,
        ___                                                                 ___
S630.160 (1995); N. J. Admin. Code S13:35-4.2(b) (1997) (limiting performance of
abortions to "physician[s] licensed to practice medicine and surgery in the
State of New Jersey," which in turn requires meeting the criteria in N. J. Stat.
Ann. SS45:9-6, 45:9-7 (West 1991), and N. J. Stat. Ann. S45:9-8 (West Supp.
1997)); N. M. Stat. Ann. SS30-5-1(C), 30-5-3 (1994) (as interpreted in N. M. Op.
Atty. Gen. 90-19 (1990)); N. M. Stat. Ann. S61-6-11 (1996); N. C. Gen. Stat.
S14-45.1(a) (1993); id., S90-9 (Supp. 1996); N. D. Cent. Code S14-02.1-04(1)
                    ___
(1991); id., S43-17-18 (1993); Ohio Rev. Code Ann. S2919.11 (1996); id.,
        ___                                                         ___
SS4731.091, 4731.41 (1994); Okla. Stat., Tit. 59, S493.1 (Supp. 1997); id., Tit.
                                                                       ___

2                             MAZUREK v. ARMSTRONG
                                      __

law was challenged almost immediately by respondents, who are a group of
licensed physicians and one physician-assistant practicing in Montana.  The
District Court denied respondents' motion for a preliminary injunction,






































                    
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63, S1-731(A) (1997); 18 Pa. Cons. Stat. SS3203, 3204(a) (1983 and Supp. 1997);
63 Pa. Cons. Stat. SS271.6, 422.28 (1996); R. I. Code R. 14.000.009, 600.1
(1996) (limiting performance of abortions to "physicians licensed under the
[applicable provisions of Rhode Island law]," which in turn requires meeting the
criteria in R. I. Gen. Laws S5-37-2 (1995)); S. C. Code Ann. S40-47-90 (Supp.
1996) (as implemented by S. C. Code Ann. Regs. SS81-80, 81-81, 81-90 (Supp.
1996)); S. C. Code. Ann. SS44-41-10(b), 44-41-20 (1985); S. D. Codified Laws
S34-23A-1(4) (Supp. 1997); id., SS34-23A-3, 34-23A-4, 34-23A-5 (1994); id.,
                          ____                                         ___
S36-4-11 (Supp. 1997); Tex. Health & Safety Code Ann. S245.010(b) (1992); Tex.
Rev. Civ. Stat. Ann., Art. 4495b, S3.04 (Vernon Supp. 1997); Utah Code Ann.
SS58-67-302, 58-68-302 (Supp. 1996); id., S76-7-302(1) (1995); Va. Code Ann.
                                     ___
SS18.2-71, 18.2-72, 18.2-73, 18.2-74 (1996); id., S54.1-2930 (1994); Wash. Rev.
                                             ___
Code SS9.02.110, 9.02.120, 9.02.170(4) (Supp. 1997); id., SS18.57.020, 18.71.050
                                                     ___
(Supp. 1997); Wis. Stat. SS448.01(5) (1988 and Supp. 1996); id., S940.15(5)
                                                            ___
(1996); Wyo. Stat. S33-26-303 (Supp. 1996); id., S35-6-111 (1994).
                                            ___

                              MAZUREK v. ARMSTRONG                             3
                                      __

finding that they had not established any likelihood of prevailing on their
claim that the law imposed an "undue burden" within the meaning of Planned
                                                                   _______
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992).  906 F. Supp.
______________________________    ______
561, 567 (Mont. 1995).  The Court of Appeals for the Ninth Circuit vacated the
District Court's judgment, holding that respondents had shown a "fair chance of
success on the merits" of their claim, and thus had met the threshold
requirement for preliminary injunctive relief under Circuit precedent.  94 F. 3d
566, 567-568 (1996).  The case was remanded to the District Court with instruc-
tions to reconsider the "balance of hardships" and determine whether entry of a
preliminary injunction was ultimately warranted.  Ibid.  The District Court has
                                                  _____
not yet reconsidered the merits of the preliminary-injunction motion, but it has
entered (based on the parties' stipulations) an injunction pending appeal
pursuant to Federal Rule of Civil Procedure 62(c), and has postponed its hearing
on the preliminary-injunction motion until our disposition of petitioner's
certiorari petition.  Order Granting Injunction Pending Appeal, No. CV
95-083-GF-PGH (Mont., Nov. 5, 1996), App. to Pet. for Cert. 31a-32a.  As a
consequence, Montana's physician-only requirement is unenforceable at the
present time against respondent Susan Cahill, who is the only nonphysician
licensed to perform abortions in Montana.
  The Court of Appeals' conclusion that respondents had established a "fair
chance of success on the merits" of their constitutional challenge is
inconsistent with our treatment of the physician-only requirement at issue in
Casey.  That requirement involved only the provision of information to patients,
_____                                                   ____________
and not the actual performance of abortions, yet we nonetheless held -
                   ____________
overruling our prior holding in Akron v. Akron Center for Reproductive Health,
                                _____    _____________________________________
Inc., 462 U. S. 416, 448 (1983) - that the limitation to physicians was valid. 
_____
Casey, supra, at 884-885.  We found that "[s]ince there is no evidence on this
_____________
record that requiring a doctor to give the informa-

4                             MAZUREK v. ARMSTRONG
                                      __

tion as provided by the statute would amount in practical terms to a substantial
                                                                     ___________
obstacle to a woman seeking an abortion, . . . it is not an undue burden."  505
_______________________________________
U. S., at 884-885 (emphasis added).  The District Court, quoting this precise
passage, held: "There exists insufficient evidence in the record to support the
conclusion [that] the requirement that a licensed physician perform an abortion
would amount, `in practical terms, to a substantial obstacle to a woman seeking
                                        _______________________________________
an abortion.'  Accordingly, it is unlikely that [respondents] will prevail upon
___________
their suggestion that the requirement constitutes an `undue burden' within the
meaning of Casey."  906 F. Supp., at 567 (quoting Casey, supra, at 884 (emphasis
           _____                                  _____________
added)).
  The Court of Appeals never contested this District Court conclusion that there
was "insufficient evidence in the record" that the requirement posed a
"substantial obstacle to a woman seeking an abortion."  Instead, it held that
the physician-only requirement was arguably invalid because its purpose,
                                                                _______
according to the Court of Appeals, may have been to create a substantial
obstacle to women seeking abortions.  94 F. 3d, at 567.  But even assuming the
correctness of the Court of Appeals' implicit premise - that a legislative
purpose to interfere with the constitutionally protected right to abortion
_______
without the effect of interfering with that right (here it is uncontested that
            ______
there was insufficient evidence of a "substantial obstacle" to abortion) could
render the Montana law invalid - there is no basis for finding a vitiating
legislative purpose here.  We do not assume unconstitutional legislative intent
even when statutes produce harmful results, see, e.g., Washington v. Davis, 426
                                                 ____  __________    ______
U. S. 229, 246 (1976); much less do we assume it when the results are harmless. 
One searches the Court of Appeals' opinion in vain for any mention of any
evidence suggesting an unlawful motive on the part of the Montana Legislature. 
If the motion at issue here were a defendant's motion for summary judgment, and
if the plaintiff's only basis for proceeding with the suit

                              MAZUREK v. ARMSTRONG                             5
                                      __

were a claim of improper legislative purpose, one would demand some evidence of
                                                               _____
that improper purpose in order to avoid a nonsuit.  And what is at issue here is
not even a defendant's motion for summary judgment, but a plaintiff's motion for
preliminary injunctive relief, as to which the requirement for substantial proof
is much higher.  "It frequently is observed that a preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of persuasion."  11A C. Wright,
        __________________
A. Miller, & M. Kane, Federal Practice and Procedure S2948, pp. 129-130 (2d ed.
1995) (emphasis added; footnotes omitted).
   Respondents claim in this Court that the Montana law must have had an
invalid purpose because "all health evidence contradicts the claim that there is
any health basis" for the law.  Brief in Opposition 7.  Respondents contend that
"the only extant study comparing the complication rates for first-trimester
abortions performed by [physician-assistants] with those for first-trimester
abortions performed by physicians found no significant difference."  Ibid.  But
                                                                     _____
this line of argument is squarely foreclosed by Casey itself.  In the course of
                                                _____
upholding the physician-only requirement at issue in that case, we emphasized
that "[o]ur cases reflect the fact that the Constitution gives the States broad
latitude to decide that particular functions may be performed only by licensed
professionals, even if an objective assessment might suggest that those same
               _____________________________________________________________
tasks could be performed by others."  505 U. S., at 885 (emphasis added). 
__________________________________
Respondents fall back on the fact that an anti-abortion group drafted the
Montana law.  But that says nothing significant about the legislature's purpose
in passing it.
  Today's dissent, for its part, claims that "there is substantial evidence
indicating that the sole purpose of the statute was to target a particular
licensed professional" (respondent Susan Cahill).  Post, at 4.  It is true that
                                                   _____
the law "targeted" Cahill in the sense that she was

6                             MAZUREK v. ARMSTRONG
                                      __

the only nonphysician performing abortions at the time it was passed.  But it is
difficult to see how that helps rather than harms respondents' case.  The
dissent does not claim that this was an unconstitutional bill of attainder, nor
was that the basis on which the Court of Appeals relied.  (Such a contention
would be implausible as applied to a provision so commonplace as to exist in 40
other States, see n. 1, supra.)  And the basis on which the Court of Appeals did
                        _____                                                ___
rely (that the purpose of the law may have been to create a "substantial
obstacle" to abortion) is positively contradicted by the fact that only a single
practitioner is affected.  That is especially so since under the old scheme
Cahill could only perform abortions with a licensed physician (who also performs
abortions) present, see Brief in Opposition 4, meaning that no woman seeking an
abortion would be required by the new law to travel to a different facility than
was previously available.  All this strongly supports the District Court's
finding, after hearing testimony, that there was insufficient evidence that the
law created a "substantial obstacle" to abortion.  And there is simply no
evidence that the legislature intended the law to do what it plainly did not
do. (Ftnote. 2)  
    (Ftnote. 2)
  The Court of Appeals' decision is also contradicted by our repeated statements
in past cases - none of which was so much as cited by the Court of Appeals,
despite the District Court's discussion of two of them - that the performance of
abortions may be restricted to physicians.  We first expressed this view
(although it was not necessary to our holding) in Roe v. Wade, 410 U. S. 113,
                                                  ___    _____
165 (1973), saying that "[t]he State may define the term `physician,' . . . to
mean only a physician currently



























                    
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   2)   Since the record does not support a conclusion that "the legislature's
   2)  
predominant motive, see Shaw [v. Hunt, 517 U. S. ___ (1996)]," post, at 4, was
                        ____     ____                          ____
to create a "substantial obstacle" to abortion, it is quite unnecessary to
address "whether the Court of Appeals misread this Court's opinions in Miller
                                                                       ______
[v. Johnson, 515 U. S. ___ (1995)] and Shaw," post, at 5-6.
    _______                            ____   _____

                              MAZUREK v. ARMSTRONG                             7
                                      __

licensed by the State, and may proscribe any abortion by a person who is not a
physician as so defined."  We reiterated this view in Connecticut v. Menillo,
                                                      ___________    ________
423 U. S. 9, 11 (1975), where, in the course of holding that the Federal Consti-
tution posed no bar to the conviction of a person with no medical training for
the performance of an abortion, we said that "prosecutions for abortions
conducted by nonphysicians infringe upon no realm of personal privacy secured by
the Constitution against state interference."  Finally, in Akron, supra, in the
                                                           _____________
course of striking down a requirement that licensed physicians rather than other
medical personnel provide specified information to patients (the holding
overruled in Casey), we emphasized that our prior cases "left no doubt that, to
             _____
ensure the safety of the abortion procedure, the States may mandate that only
physicians perform abortions."  462 U. S., at 447 (citing Roe, supra, at 165,
                                                          ___  _____
and Menillo, supra, at 11).
    _______  _____
  Respondents urge us to ignore the error in the Court of Appeals' judgment
because the case comes to us prior to the entry of a final judgment in the lower
courts.  It is true that we are ordinarily reluctant to exercise our certiorari
jurisdiction in that circumstance.  See, e.g., Hamilton-Brown Shoe Co. v. Wolf
                                         _____ _______________________    ____
Brothers & Co., 240 U. S. 251, 258 (1916).  But our cases make clear that there
_______________
is no absolute bar to review of nonfinal judgments of the lower federal courts,
see, e.g., Estelle v. Gamble, 429 U. S. 97, 98 (1976); United States v. General
     ____  _______    _______                          _____________    _______
Motors Corp., 323 U. S. 373, 377 (1945); see also R. Stern, E. Gressman, S.
_____________
Shapiro, & K. Geller, Supreme Court Practice S4.18 (7th ed. 1993) (citing
cases), and we conclude here that reversal of the Court of Appeals' judgment in
a summary disposition is appropriate, for two reasons.  First, as already noted,
the Court of Appeals' decision is clearly erroneous under our prece-
dents. (Ftnote. 3)  Second, the lower court's judgment has pro-
       (Ftnote. 3)






















                    
____________________

   3)   The dissent says that the Court of Appeals did not resolve any
   3)  
important issue of law in this case, but instead merely remanded to the District
Court after "determin[ing] that a further inquiry into the facts [was]
appropriate."  Post, at 4, 5.  We disagree.  The Court of Appeals expressly
               _____
found, and it was necessary to its disposition, that respondents had shown a
"fair chance of success" on their claim of undue burden.  94 F.3d 566, 567-568
(CA9 1996).  As already explained, that determination of law is inconsistent
with our precedents.

8                             MAZUREK v. ARMSTRONG
                                      __

duced immediate consequences for Montana - in the form of a Rule 62(c)
injunction against implementation of its law pending the District Court's
resolution of respondents' motion for a preliminary injunction - and has created
a real threat of such consequences for the six other States in the Ninth Circuit
that have physician-only requirements. (Ftnote. 4)  Indeed, plain-
                                       (Ftnote. 4)
tiffs in the Ninth Circuit seeking to challenge those States' laws may well be
able to meet the threshold "fair chance of success" requirement for a
preliminary injunction merely by alleging an improper purpose for the physician-
only rule, since, as noted above, the Court of Appeals did not appear to rely on
any evidence suggesting an unlawful motive on the part of the Montana Legisla-
ture. (Ftnote. 5)
      (Ftnote. 5)
















                    
____________________

   4)   See Alaska Stat. Ann. SS08.64.200, 18.16.010(a)(1) (1996); Cal. Health
   4)  
& Safety Code Ann. S123405 (West 1996) (as interpreted under prior statutory
designation in 74 Op. Cal. Atty. Gen. 101 (1991)); Haw. Rev. Stat. SS453-4,
453-16(a)(1) (1993); Idaho Code S18-608 (1997); id., SS54-1803(3), 54-1803(4)
                                                ___
(1994); Nev. Rev. Stat. S442.250(1)(a) (1991); id., S630.160 (1995); Wash. Rev.
                                               ___
Code SS9.02.110, 9.02.120, 9.02.170(4) (Supp. 1997); id., SS18.57.020, 18.71.050
                                                     ___
(Supp. 1997).
   5)  The dissent contends that some States which restrict the performance of
   5)  
abortions to licensed physicians may define "licensed physician" to include
"physician-assistant" when the latter works under the former's supervision;
thus, the dissent says, the Court of Appeals' decision may not in fact be
inconsistent with the physician-only regimes of other States.  Post, at 5.  But
                                                               _____
the provisions of state law to which the dissent points reflect the general
definition of what qualifies as the "authorized practice" of medicine, without
making any specific reference to abortion.  See, e.g., Fla. Stat. Ann.
                                                 ____
SS458.303(1)(a), 458.327(1), 458.347 (1991 and Supp. 1997); post, at 5, n. 7
                                                            ____
(citing statutes).  Thus, for example, under Florida law, the performance of an
abortion by a physician-assistant would not constitute "practic[ing] medicine
. . . without a license" for purposes of the felony defined in Fla. Stat. Ann.
S458.327(1), but there is no reason to think it would not violate the more
specific prohibition on the performance of abortions by persons other than "a
doctor of medicine or osteopathic medicine licensed by the state under chapter
458 or chapter 459," Fla. Stat. Ann. SS390.001(1)(a), 390.001(3) (1993).  A
formal opinion by the Attorney General of California has reached precisely this
conclusion under that State's law: "[W]e cannot accept the notion that the
Legislature meant to gainsay th[e] carefully tailored and highly specific
determination [that abortions should be performed by licensed physicians] when
it . . . adopted the general language of the Physician Assistant Practice Act." 
74 Op. Cal. Atty. Gen. 101, 108 (1991).

                              MAZUREK v. ARMSTRONG                             9
                                      __

  For the foregoing reasons, we grant the petition for certiorari, reverse the
judgment of the Court of Appeals, and remand for further proceedings consistent
with this opinion.
                                                               It is so ordered.
                                                               _________________