Webster v. Reproductive Health Services/Concurrence Scalia

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Concurring Opinions

JUSTICE SCALIA, concurring in part and concurring in the judgment.

I join Parts I, II-A, II-B, and II-C of the opinion of the Court. As to Part II-D, I share JUSTICE BLACKMUN's view, post at 556, that it effectively would overrule Roe v. Wade, 410 U.S. 113 (1973). I think that should be done, but would do it more explicitly. Since today we contrive to avoid doing it, and indeed to avoid almost any decision of national import, I need not set forth my reasons, some of which have been well recited in dissents of my colleagues in other cases. See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 786-797 (1986) (WHITE, J., dissenting); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 453-459 (1983) (O'CONNOR, J., dissenting); Roe v. Wade, supra, at 172-178 (REHNQUIST, J., dissenting); Doe v. Bolton, 410 U.S. 179, 221-223 (1973) (WHITE, J., dissenting).

The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court's self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political, and not juridical — a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.

JUSTICE O'CONNOR's assertion, ante at 526, that a "‘fundamental rule of judicial restraint'" requires us to avoid reconsidering Roe, cannot be taken seriously. By finessing Roe we do not, as she suggests, ante at 526, adhere to the strict and venerable rule that we should avoid "‘decid[ing] questions of a constitutional nature.'" We have not disposed of this case on some statutory or procedural ground, but have decided, and could not avoid deciding, whether the Missouri statute meets the requirements of the United States Constitution. [p533] The only choice available is whether, in deciding that constitutional question, we should use Roe v. Wade as the benchmark, or something else. What is involved, therefore, is not the rule of avoiding constitutional issues where possible, but the quite separate principle that we will not "‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Ante at 526. The latter is a sound general principle, but one often departed from when good reason exists. Just this Term, for example, in an opinion authored by JUSTICE O'CONNOR, despite the fact that we had already held a racially based set-aside unconstitutional because unsupported by evidence of identified discrimination, which was all that was needed to decide the case, we went on to outline the criteria for properly tailoring race-based remedies in cases where such evidence is present. Richmond v. J. A. Croson Co., 488 U.S. 469, 506-508 (1989). Also this Term, in an opinion joined by JUSTICE O'CONNOR, we announced the constitutional rule that deprivation of the right to confer with counsel during trial violates the Sixth Amendment even if no prejudice can be shown, despite our finding that there had been no such deprivation on the facts before us — which was all that was needed to decide that case. Perry v. Leeke, 488 U.S. 272, 278-280 (1989); see id. at 285 (KENNEDY, J., concurring in part). I have not identified with certainty the first instance of our deciding a case on broader constitutional grounds than absolutely necessary, but it is assuredly no later than Marbury v. Madison, 1 Cranch 137 (1803), where we held that mandamus could constitutionally issue against the Secretary of State, although that was unnecessary given our holding that the law authorizing issuance of the mandamus by this Court was unconstitutional.

The Court has often spoken more broadly than needed in precisely the fashion at issue here, announcing a new rule of constitutional law when it could have reached the identical result by applying the rule thereby displaced. To describe [p534] two recent opinions that JUSTICE O'CONNOR joined: In Daniels v. Williams, 474 U.S. 327 (1986), we overruled our prior holding that a "deprivation" of liberty or property could occur through negligent governmental acts, ignoring the availability of the alternative constitutional ground that, even if a deprivation had occurred, the State's postdeprivation remedies satisfied due process, see id. at 340-343 (STEVENS, J., concurring in judgment). In Illinois v. Gates, 462 U.S. 213 (1983), we replaced the preexisting "two-pronged" constitutional test for probable cause with a totality-of-the-circumstances approach, ignoring the concurrence's argument that the same outcome could have been reached under the old test, see id. at 267-272 (WHITE, J., concurring in judgment). It is rare, of course, that the Court goes out of its way to acknowledge that its judgment could have been reached under the old constitutional rule, making its adoption of the new one unnecessary to the decision, but even such explicit acknowledgment is not unheard of. See Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981); Perez v. Campbell, 402 U.S. 637 (1971). For a sampling of other cases where the availability of a narrower, well-established ground is simply ignored in the Court's opinion adopting a new constitutional rule, though pointed out in separate opinions of some Justices, see Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976); Pointer v. Texas, 380 U.S. 400 (1965); and Mapp v. Ohio, 367 U.S. 643 (1961). It would be wrong, in any decision, to ignore the reality that our policy not to "formulate a rule of constitutional law broader than is required by the precise facts" has a frequently applied good-cause exception. But it seems particularly perverse to convert the policy into an absolute in the present case, in order to place beyond reach the inexpressibly "broader than was required by the precise facts" structure established by Roe v. Wade. The real question, then, is whether there are valid reasons to go beyond the most stingy possible holding today. It seems to me there are not only valid but compelling ones. [p535] Ordinarily, speaking no more broadly than is absolutely required avoids throwing settled law into confusion; doing so today preserves a chaos that is evident to anyone who can read and count. Alone sufficient to justify a broad holding is the fact that our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will. Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today. And if these reasons for taking the unexceptional course of reaching a broader holding are not enough, then consider the nature of the constitutional question we avoid: in most cases, we do no harm by not speaking more broadly than the decision requires. Anyone affected by the conduct that the avoided holding would have prohibited will be able to challenge it himself and have his day in court to make the argument. Not so with respect to the harm that many States believed, pre-Roe, and many may continue to believe, is caused by largely unrestricted abortion. That will continue to occur if the States have the constitutional power to prohibit it, and would do so, but we skillfully avoid telling them so. Perhaps those abortions cannot constitutionally be proscribed. That is surely an arguable question, the question that reconsideration of Roe v. Wade entails. But what is not at all arguable, it seems to me, is that we should decide now, and not insist that we be run into a corner before we grudgingly yield up our judgment. The only sound reason for the latter course is to prevent a change in the law — but to think that desirable begs the question to be decided. [p536]

It was an arguable question today whether § 188.029 of the Missouri law contravened this Court's understanding of Roe v. Wade, [*] and I would have examined Roerather than [p537] examining the contravention. Given the Court's newly contracted abstemiousness, what will it take, one must wonder, to permit us to reach that fundamental question? The result of our vote today is that we will not reconsider that prior opinion, even if most of the Justices think it is wrong, unless we have before us a statute that in fact contradicts it — and even then (under our newly discovered "no broader than necessary" requirement) only minor problematical aspects of Roe will be reconsidered, unless one expects state legislatures to adopt provisions whose compliance with Roe cannot even be argued with a straight face. It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.

Of the four courses we might have chosen today — to reaffirm Roe, to overrule it explicitly, to overrule it sub silentio, or to avoid the question — the last is the least responsible. On the question of the constitutionality of § 188.029, I concur in the judgment of the Court and strongly dissent from the manner in which it has been reached.

  • That question, compared with the question whether we should reconsider and reverse Roe, is hardly worth a footnote, but I think JUSTICE O'CONNOR answers that incorrectly as well. In Roe v. Wade, 410 U.S. 113, 165-166 (1973), we said that

the physician [has the right] to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention.

We have subsequently made clear that it is also a matter of medical judgment when viability (one of those points) is reached.

The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.

Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976). Section 188.029 conflicts with the purpose, and hence the fair import, of this principle, because it will sometimes require a physician to perform tests that he would not otherwise have performed to determine whether a fetus is viable. It is therefore a legislative imposition on the judgment of the physician, and one that increases the cost of an abortion.

JUSTICE O'CONNOR would nevertheless uphold the law because it "does not impose an undue burden on a woman's abortion decision." Ante at 492 U.S. 530. This conclusion is supported by the observation that the required tests impose only a marginal cost on the abortion procedure, far less of an increase than the cost-doubling hospitalization requirement invalidated in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). See ante at 530-531. The fact that the challenged regulation is less costly than what we struck down in Akron tells us only that we cannot decide the present case on the basis of that earlier decision. It does not tell us whether the present requirement is an "undue burden," and I know of no basis for determining that this particular burden (or any other for that matter) is "due." One could with equal justification conclude that it is not. To avoid the question of Roe v. Wade's validity, with the attendant costs that this will have for the Court and for the principles of self-governance, on the basis of a standard that offers "no guide but the Court's own discretion," Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting), merely adds to the irrationality of what we do today.

Similarly irrational is the new concept that JUSTICE O'CONNOR introduces into the law in order to achieve her result, the notion of a State's "interest in potential life when viability is possible." Ante at 528. Since "viability" means the mere possibility (not the certainty) of survivability outside the womb, "possible viability" must mean the possibility of a possibility of survivability outside the womb. Perhaps our next opinion will expand the third trimester into the second even further, by approving state action designed to take account of "the chance of possible viability."