In its first abortion case after Roe v. Wade, the Supreme Court in Planned Parenthood of Missouri v. Danforth, reviewed seven components of Missouri’s new, post-Roe abortion law. The Court struck down requirements of parental and spousal consent, a ban on a common method of abortion called saline amniocentesis, and a criminal penalty on doctors who fail to seek to preserve the life and health of the fetus at all stages of pregnancy. It sustained the statute’s viability definition, informed patient consent requirement, and medical recordkeeping and reporting obligation.
Danforth is best known for its analysis of spousalconsent and parental-consent requirements. Justice Blackmun wrote for a six-member majority that requiring a husband’s written consent unconstitutionally afforded him authority to veto his wife’s choice, a power that ‘‘the state itself is absolutely and totally prohibited from exercising’’ during the first trimester and thus cannot delegate to the husband. The Court recognized that, ideally, both spouses would agree whether to continue a pregnancy, but underscored that when they do not, ‘‘the view of only one of the two marriage partners can prevail.’’ In such a case, the woman, who physically bears the child, must have the choice.
A five-member majority applied a similar rationale to the requirement that a pregnant minor obtain her parent’s written consent as a condition of terminating a pregnancy. Missouri did not require parental consent for any other medical procedure, and the Court held that requiring it for abortion violated Roe. Justices Stewart and Powell, concurring, suggested that a parental consent requirement might be constitutional if it provided for a ‘‘judicial bypass’’ of the requirement when a court determined ‘‘that the minor is mature enough to give an informed consent without parental concurrence or that the abortion in any event is in the minor’s best interest.’’ Justice Stevens parted with the majority on the parental-consent requirement, which he viewed as justified by the state’s interest in the welfare of its youth.
A six-member majority also struck the saline amniocentesis prohibition and fetal protection requirement. The Court found no valid health rationale for barring saline amniocentesis, noting that it was safer than permitted alternative methods, less risky than childbirth, and was the most common, medically accepted method of second-trimester abortions. The requirement that doctors seek to preserve the life of the fetus to the same extent that they would a child intended to be born alive effectively precluded even abortions before viability, also in conflict with Roe.
The Court unanimously sustained the three remaining provisions. The statute set viability as ‘‘when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems,’’ which the Court held was consistent with Roe’s concept of viability as ‘‘a matter of medical judgment, skill, and technical ability.’’ The Court concluded that Missouri’s requirement that a woman obtaining an abortion during the first twelve weeks of pregnancy certify in writing ‘‘that her consent is informed and freely given and is not the result of coercion’’ was consistent with woman’s reproductive choice. The Court also upheld the requirement that doctors record and report to public health authorities the numbers and types of abortions performed as ‘‘reasonably directed to the preservation of maternal health’’ while properly respecting women’s confidentiality and privacy.
Justice White, joined in dissent by Chief Justice Burger and Justice Rehnquist, would have upheld every provision of the Missouri statute, leaving the regulation of abortion primarily in the hands of state legislators.
In the decades since Danforth, many states have enacted restrictions, including parental and spousal involvement requirements, on providers and on women seeking abortions. The Danforth concurrence’s suggestion that parental consent cannot be required absent provision for a prompt, confidential judicial bypass has been embraced by a majority of the Court. (See Planned Parenthood Assn. of Kansas City v. Ashcroft, 462 U.S. 476, 1983.) Under the flexible modern standard of Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992), the Court also has reaffirmed the unconstitutionality of spousal consent requirements first struck down in Danforth.
Cases and Statutes Cited
See also Abortion; Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983); Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992); Roe v. Wade, 410 U.S. 113 (1973)