# Webster v. Reproductive Health Services/Concurrence-dissent Stevens

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JUSTICE STEVENS, concurring in part and dissenting in part.
Having joined Part II-C of the Court's opinion, I shall not comment on § 188.205 of the Missouri statute. With respect to the challenged portions of §§ 188.210 and 188.215, I agree with JUSTICE BLACKMUN, ante at 539-541, n. 1 (concurring in part and dissenting in part), that the record identifies a sufficient number of unconstitutional applications to support the Court of Appeals' judgment invalidating those provisions. The reasons why I would also affirm that court's invalidation of § 188.029, the viability testing provision, and §§ 1.205.1(1), (2) of the preamble, require separate explanation.

#### I

It seems to me that in Part II-D of its opinion, the plurality strains to place a construction on § 188.029 that enables [p561] it to conclude: "[W]e would modify and narrow Roe and succeeding cases," ante at 521. That statement is ill-advised, because there is no need to modify even slightly the holdings of prior cases in order to uphold § 188.029. For the most plausible nonliteral construction, as both JUSTICE BLACKMUN, ante at 542-544 (concurring in part and dissenting in part), and JUSTICE O'CONNOR, ante at 525-531 (concurring in part and concurring in judgment), have demonstrated, is constitutional and entirely consistent with our precedents.
I am unable to accept JUSTICE O'CONNOR's construction of the second sentence in § 188.029, however, because I believe it is foreclosed by two controlling principles of statutory interpretation. First, it is our settled practice to accept
the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state law issue without such guidance might have justified a different conclusion.
Bishop v. Wood, 426 U.S. 341, 346 (1976). Second,
[t]he fact that a particular application of the clear terms of a statute might be unconstitutional does not provide us with a justification for ignoring the plain meaning of the statute.
Public Citizen v. Department of Justice, 491 U.S. 440, 481 (1989) (KENNEDY, J., concurring [p562] in judgment). In this case, I agree with the Court of Appeals, 851 F.2d 1071, 1074-1075 (CA8 1988), and the District Court, 662 F.Supp. 407, 423 (WD Mo.1987), that the meaning of the second sentence of § 188.029 is too plain to be ignored. The sentence twice uses the mandatory term "shall," and contains no qualifying language. If it is implicitly limited to tests that are useful in determining viability, it adds nothing to the requirement imposed by the preceding sentence.
My interpretation of the plain language is supported by the structure of the statute as a whole, particularly the preamble, which "finds" that life "begins at conception" and further commands that state laws shall be construed to provide the maximum protection to "the unborn child at every stage of development." Mo.Rev.Stat. §§ 1.205.1(1), 1.205.2 (1986). I agree with the District Court that "[o]bviously, the purpose of this law is to protect the potential life of the fetus, rather than to safeguard maternal health." 662 F.Supp. at 420. A literal reading of the statute tends to accomplish that goal. Thus it is not "incongruous," ante at 515, to assume that the Missouri Legislature was trying to protect the potential human life of nonviable fetuses by making the abortion decision more costly. On the contrary, I am satisfied that the Court of Appeals, as well as the District Court, correctly concluded that the Missouri Legislature meant exactly what it said in the second sentence of § 188.029. I am also satisfied, [p563] for the reasons stated by JUSTICE BLACKMUN, that the testing provision is manifestly unconstitutional under Williamson v. Lee Optical Co., 348 U.S. 483 (1955),"'irrespective of the Roe v. Wade, 410 U.S. 113 (1973),] framework." Ante at 544 (concurring in part and dissenting in part).

#### II

The Missouri statute defines "conception" as "the fertilization of the ovum of a female by a sperm of a male," Mo.Rev.Stat. § 188.015(3) (1986), even though standard medical texts equate "conception" with implantation in the uterus, occurring about six days after fertilization. Missouri's declaration therefore implies regulation not only of previability abortions, but also of common forms of contraception such as the IUD and the morning-after pill. Because the preamble, read in context, threatens serious encroachments upon the liberty of the pregnant woman and the health professional, I am persuaded that these plaintiffs, appellees before us, have [p564] standing to challenge its constitutionality. Accord, 851 F.2d at 1075-1076.
To the extent that the Missouri statute interferes with contraceptive choices, I have no doubt that it is unconstitutional under the Court's holdings in Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); and Carey v. Population Services International, 431 U.S. 678 (1977). The place of Griswold in the mosaic of decisions defining a woman's liberty interest was accurately stated by Justice Stewart in his concurring opinion in Roe v. Wade, 410 U.S. 113, 167-170 (1973):
[I]n Griswold v. Connecticut, 381 U.S. 479, the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in [Ferguson v.] Skrupa, [[[372 U.S. 726]] (1963),] the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. So it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 [(1967)]; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, [[[268 U.S. 510]] (1925)]; Meyer v. Nebraska, [[[262 U.S. 390]] (1923)]. See also [p565] Prince v. Massachusetts, 321 U.S. 158, 166 [(1944)]; Skinner v. Oklahoma, 316 U.S. 535, 541 [(1942)]. As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, we recognized
the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.
Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510"]268 U.S. 510 (1925), or the right to teach a foreign language protected in 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923).
Abele v. Markle, 351 F.Supp. 224, 227 (Conn.1972).
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.
(Emphasis in original; footnotes omitted.)
One might argue that the Griswold holding applies to devices "preventing conception," 381 U.S. at 480 -- that is, fertilization -- but not to those preventing implantation, and therefore, that Griswold does not protect a woman's choice to use an IUD or take a morning-after pill. There is unquestionably [p566] a theological basis for such an argument, just as there was unquestionably a theological basis for the Connecticut statute that the Court invalidated in Griswold. Our jurisprudence, however, has consistently required a secular basis for valid legislation. See, e.g., Stone v. Graham, 449 U.S. 39, 40 (1980) (per curiam). Because I am not aware of any secular basis for differentiating between contraceptive procedures that are effective immediately before and those that are effective immediately after fertilization, I believe it inescapably follows that the preamble to the Missouri statute is invalid under Griswold and its progeny.
Indeed, I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution. This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, see McGowan v. Maryland, 366 U.S. 420, 442 (1961); Harris v. McRae, 448 U.S. 297, 319-320 (1980), or on the fact that the legislators who voted to enact it may have been motivated by religious considerations, see Washington v. Davis, 426 U.S. 229, 253 (1976) (STEVENS, J., concurring). Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some, but by no means all, Christian faiths, serves no identifiable [p567] secular purpose. That fact alone compels a conclusion that the statute violates the Establishment Clause. Wallace v. Jaffree, 472 U.S. 38, 56 (1985).
My concern can best be explained by reference to the position on this issue that was widely accepted by the leaders of the Roman Catholic Church for many years. The position is summarized in a report, entitled "Catholic Teaching On Abortion," prepared by the Congressional Research Service of the Library of Congress. It states in part:
The disagreement over the status of the unformed as against the formed fetus was crucial for Christian teaching on the soul. It was widely held that the soul was not present until the formation of the fetus 40 or 80 days after conception, for males and females respectively. Thus, abortion of the "unformed" or "inanimate" fetus (from anima, soul) was something less than true homicide, rather a form of anticipatory or quasi-homicide. This view received its definitive treatment in St. Thomas Aquinas, and became for a time the dominant interpretation m the Latin Church.
For St. Thomas, as for mediaeval Christendom generally, there is a lapse of time -- approximately 40 to 80 days -- after conception and before the soul's infusion. . . .
For St. Thomas, "seed and what is not seed is determined by sensation and movement." What is destroyed in abortion of the unformed fetus is seed, not man. This distinction received its most careful analysis in St. Thomas. It was the general belief of Christendom, reflected, [p568] for example, in the Council of Trent (1545-1563), which restricted penalties for homicide to abortion of an animated fetus only.
C. Whittier, Catholic Teaching on Abortion: Its Origin and Later Development (1981), reprinted in Brief for Americans United for Separation of Church and State as Amicus Curiae 13a, 17a (quoting In octo libros politicorum 7.12, attributed to St. Thomas Aquinas). If the views of St. Thomas were held as widely today as they were in the Middle Ages, and if a state legislature were to enact a statute prefaced with a "finding" that female life begins 80 days after conception and male life begins 40 days after conception, I have no doubt that this Court would promptly conclude that such an endorsement of a particular religious tenet is violative of the Establishment Clause.
In my opinion the difference between that hypothetical statute and Missouri's preamble reflects nothing more than a difference in theological doctrine. The preamble to the Missouri statute endorses the theological position that there is the same secular interest in preserving the life of a fetus during the first 40 or 80 days of pregnancy as there is after viability -- indeed, after the time when the fetus has become a "person" with legal rights protected by the Constitution. To sustain that position as a matter of law, I believe Missouri has the burden of identifying the secular interests that differentiate the first 40 days of pregnancy from the period immediately [p569] before or after fertilization when, as Griswold and related cases establish, the Constitution allows the use of contraceptive procedures to prevent potential life from developing into full personhood. Focusing our attention on the first several weeks of pregnancy is especially appropriate, because that is the period when the vast majority of abortions are actually performed.
As a secular matter, there is an obvious difference between the state interest in protecting the freshly fertilized egg and the state interest in protecting a 9-month-gestated, fully sentient fetus on the eve of birth. There can be no interest in protecting the newly fertilized egg from physical pain or mental anguish, because the capacity for such suffering does not yet exist; respecting a developed fetus, however, that interest is valid. In fact, if one prescinds the theological concept of ensoulment -- or one accepts St. Thomas Aquinas' view that ensoulment does not occur for at least 40 days -- a State has no greater secular interest in protecting the potential life of an embryo that is still "seed" than in protecting the potential life of a sperm or an unfertilized ovum.
There have been times in history when military and economic interests would have been served by an increase in population. No one argues today, however, that Missouri can assert a societal interest in increasing its population as its secular reason for fostering potential life. Indeed, our national policy, as reflected in legislation the Court upheld last Term, is to prevent the potential life that is produced by "pregnancy and childbirth among unmarried adolescents." Bowen v. Kendrick, 487 U.S. 589, 593 (1988); accord, id. at 602. If the secular analysis were based on a strict balancing of fiscal costs and benefits, the economic costs of unlimited childbearing would outweigh those of abortion. There is, of course, an important and unquestionably valid secular interest in "protecting a young pregnant woman from the consequences of an incorrect decision," Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 102 (1976) [p570] (STEVENS, J., concurring in part and dissenting in part). Although that interest is served by a requirement that the woman receive medical and, in appropriate circumstances, parental, advice, it does not justify the state legislature's official endorsement of the theological tenet embodied in §§ 1.205.1(1), (2).
The State's suggestion that the "finding" in the preamble to its abortion statute is, in effect, an amendment to its tort, property, and criminal laws is not persuasive. The Court of Appeals concluded that the preamble "is simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations." 851 F.2d at 1076. Supporting that construction is the state constitutional prohibition against legislative enactments pertaining to more than one subject matter. Mo.Const., Art. 3, § 23. See In re Ray, 83 B.R. 670 (Bkrtcy Ct., ED Mo.1988); Berry v. Majestic Milling Co., 223 S.W. 738 (Mo.1920). Moreover, none of the tort, property, or criminal law cases cited by the State was either based on or buttressed by a theological answer to the question of when life begins. Rather, the Missouri courts, as well as a number of other state courts, had already concluded that a "fetus is a ‘person,' ‘minor,' or ‘minor child' within the meaning of their particular wrongful death statutes." [p571] O'Grady v. Brown, 654 S.W.2d 904, 910 (Mo.1983) (en banc).
Bolstering my conclusion that the preamble violates the First Amendment is the fact that the intensely divisive character of much of the national debate over the abortion issue reflects the deeply held religious convictions of many participants in the debate. The Missouri Legislature may not inject its endorsement of a particular religious tradition into this debate, for "[t]he Establishment Clause does not allow public bodies to foment such disagreement." See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, post at 651 (STEVENS, J., concurring in part and dissenting in part).
In my opinion, the preamble to the Missouri statute is unconstitutional for two reasons. To the extent that it has substantive impact on the freedom to use contraceptive procedures, it is inconsistent with the central holding in Griswold. To the extent that it merely makes "legislative findings without operative effect," as the State argues, Brief for Appellants 22, it violates the Establishment Clause of the First [p572] Amendment. Contrary to the theological "finding" of the Missouri Legislature, a woman's constitutionally protected liberty encompasses the right to act on her own belief that -- to paraphrase St. Thomas Aquinas -- until a seed has acquired the powers of sensation and movement, the life of a human being has not yet begun.

#### Footnotes

* ↑ The State prefers to refer to subsections (1) and (2) of § 1.205.1 as "prefatory statements with no substantive effect." Brief for Appellants 9; see id. at 21; see also 851 F.2d 1071, 1076 (CA8 1988). It is true that § 1.205 is codified in Chapter 1, Laws in Force and Construction of Statutes, of Title I, Laws and Statutes, of the Missouri Revised Statutes, while all other provisions at issue are codified in Chapter 188, Regulation of Abortions, of Title XII, Public Health and Welfare. But because § 1.205 appeared at the beginning of House Bill No. 1596, see ante at 500-501, it is entirely appropriate to consider it as a preamble relevant to those regulations.
* ↑ The testing provision states:
* ↑ See also United States v. Durham Lumber Co., 363 U.S. 522, 526-527 (1960); Propper v. Clark, 337 U.S. 472, 486-487 (1949); Hillsborough v. Cromwell, 326 U.S. 620, 630 (1946); Huddleston v. Dwyer, 322 U.S. 232, 237 (1944); MacGregor v. State Mutual Life Ins. Co., 315 U.S. 280, 281 (1942) (per curiam).
* ↑ We have stated that we will interpret a federal statute to avoid serious constitutional problems if "a reasonable alternative interpretation poses no constitutional question," Gomez v. United States, 490 U.S. 858, 864 (1989), or if "it is fairly possible to interpret the statute in a manner that renders it constitutionally valid," Communications Workers v. Beck, 487 U.S. 735, 762 (1988), or "unless such construction is plainly contrary to the intent of Congress," Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 575 (1988).
* ↑ As with the testing provision, the plurality opts for a construction of this statute that conflicts with those of the Court of Appeals, 851 F.2d at 1076-1077, and the District Court, 662 F.Supp. 407, 413 (WD Mo.1987).
* ↑ The fertilized egg remains in the woman's Fallopian tube for 72 hours, then travels to the uterus' cavity, where cell division continues for another 72 hours before implantation in the uterine wall. D. Mishell & V. Davajan, Infertility, Contraception and Reproductive Endocrinology 109-110 (2d ed.1986); see also Brief for Association of Reproductive Health Professionals et al. as Amici Curiae 31-32 (ARHP Brief) (citing, inter alia, J. Pritchard, P. MacDonald, & N. Gant, Williams Obstetrics 88-91 (17th ed.1985)). "[O]nly 50 per cent of fertilized ova ultimately become implanted." ARHP Brief 32, n. 25 (citing Post Coital Contraception, The Lancet 856 (Apr. 16, 1983)).
* ↑ An intrauterine device, commonly called an IUD, "works primarily by preventing a fertilized egg from implanting." Burnhill, Intrauterine Contraception, in Fertility Control 271, 280 (S.C.orson, R. Derman, & L. Tyrer eds.1985). See also 21 CFR § 801.427, p. 32 (1988); ARHP Brief 34-35. Other contraceptive methods that may prevent implantation include "morning-after pills," high-dose estrogen pills taken after intercourse, particularly in cases of rape, ARHP Brief 33, and the French RU 486, a pill that works "during the indeterminate period between contraception and abortion," id. at 37. Low-1evel estrogen "combined" pills -- a version of the ordinary, daily ingested birth control pill -- also may prevent the fertilized egg from reaching the uterine wall and implanting. Id. at 35-36.
* ↑ The contrast between Justice Stewart's careful explication that our abortion precedent flowed naturally from a stream of substantive due process cases and JUSTICE SCALIA's notion that our abortion law was "constructed overnight in Roe v. Wade," ante at 537 (concurring in part and concurring in judgment) is remarkable.
* ↑ Several amici state that the "sanctity of human life from conception and opposition to abortion are, in fact, sincere and deeply held religious beliefs," Brief for Lutheran Church-Missouri Synod et al. as Amici Curiae 20 (on behalf of 49 "church denominations"); see Brief for Holy Orthodox Church as Amicus Curiae 12-14.
* ↑ The dissent in Stone did not dispute this proposition; rather, it argued that posting the Ten Commandments on schoolroom walls has a secular purpose. 449 U.S. at 43-46 (REHNQUIST, J., dissenting).
* ↑ See, e.g., Brief for Catholics for a Free Choice et al. as Amici Curiae 5 ("There is no constant teaching in Catholic theology on the commencement of personhood").
* ↑ Pointing to the lack of consensus about life's onset among experts in medicine, philosophy, and theology, the Court in Roe v. Wade, 410 U.S. 113, 158, 162 (1973), established that the Constitution does not permit a State to adopt a theory of life that overrides a pregnant woman's rights. Accord, Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 444 (1983). The constitutional violation is doubly grave if, as here, the only basis for the State's "finding" is nonsecular.
* ↑ No Member of this Court has ever questioned the holding in Roe, 410 U.S. at 156-159, that a fetus is not a "person" within the meaning of the Fourteenth Amendment. Even the dissenters in Roe implicitly endorsed that holding by arguing that state legislatures should decide whether to prohibit or to authorize abortions. See id. at 177 (REHNQUIST, J., dissenting) (arguing that the Fourteenth Amendment did not "withdraw from the States the power to legislate with respect to this matter"); Doe v. Bolton, 410 U.S. 179, 222 (1973) (WHITE, J., dissenting jointly in Doe and Roe). By characterizing the basic question as "a political issue," see ante at 535 (concurring in part and concurring in judgment), JUSTICE SCALIA likewise implicitly accepts this holding.
* ↑ 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.
* ↑ The other examples cited by the State are statutes providing that unborn children are to be treated as though born within the lifetime of the decedent, see Uniform Probate Code § 2-108 (1969), and statutes imposing criminal sanctions in the nature of manslaughter for the killing of a viable fetus or unborn quick child, see, e.g., Ark.Stat.Ann. § 41-2223 (1947). None of the cited statutes included any "finding" on the theological question of when life begins.
* ↑ No fewer than 67 religious organizations submitted their views as amici curiae on either side of this case. Amici briefs on both sides, moreover, frankly discuss the relation between the abortion controversy and religion. See generally, e.g., Brief for Agudath Israel of America as Amicus Curiae, Brief for Americans United for Separation of Church and State et al. as Amici Curiae, Brief for Catholics for a Free Choice et al. as Amici Curiae, Brief for Holy Orthodox Church as Amicus Curiae, Brief for Lutheran Church-Missouri Synod et al. as Amici Curiae, Brief for Missouri Catholic Conference as Amicus Curiae. Cf. Burke, Religion and Politics in the United States, in Movements and Issues in World Religions 243, 254-256 (C. Fu & G. Spiegler eds.1987).
* ↑ Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time, it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects -- or even intolerance among "religions" -- to encompass intolerance of the disbeliever and the uncertain. As Justice Jackson eloquently stated in West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943):
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
The State...no less than the Congress of the United States, must respect that basic truth.
Wallace v. Jaffree, 472 U.S. 38, 52-55 (1985) (footnotes omitted).