OCTOBER TERM, 1996
Syllabus
MAZUREK, ATTORNEY GENERAL OF MONTANA
v.
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
Respondents, licensed physicians and a physician assistant
practicing in Montana, challenged a state law restricting the
performance of abortions to licensed physicians. In denying their
motion for preliminary injunction, the Federal District Court found
that they had not established any likelihood of prevailing on their
claim that the law imposed an undue burden under
Planned
Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833. The Ninth
Circuit vacated the judgment, holding that respondents had met the
Circuit's threshold requirement for a preliminary injunction by
showing a fair chance of success on the merits. On remand, the
District Court entered an injunction pending appeal and postponed
hearing the merits of the preliminary injunction motion pending the
disposition of petitioner's certiorari petition. As a consequence,
the physician-only requirement is unenforceable at the present time
against the only nonphysician licensed to perform abortions in
Montana.
Held: The judgment of the Court of Appeals is reversed.
Since the physician-only requirement at issue in
Casey did
not pose a "substantial obstacle to a woman seeking an abortion,"
it was not an undue burden on the right to abortion. 505 U. S., at
884-885. This precise passage was quoted by the District Court when
it concluded that there was insufficient evidence to find a
substantial obstacle in Montana. The Ninth Circuit never contested
that conclusion, finding instead that the law's purpose made it
arguably invalid. However, there is no evidence of a vitiating
legislative purpose here. The Court of Appeals' decision is also
contradicted by this Court's repeated statements that the
performance of abortions may be restricted to physicians. See,
e. g., Roe v.
Wade, 410 U. S. 113, 165. Since
the Ninth Circuit's decision is clearly erroneous under this
Court's precedents, and since its judgment has produced immediate
consequences for Montana-in the form of an injunction against the
law's implementation-and has raised a real threat of such
consequences for the six other States in the Circuit that have
physician-only requirements, summary reversal is appropriate.
Certiorari granted;
94 F.3d
566, reversed and remanded.
969
PER CURIAM.
In 1995, the Montana Legislature enacted a statute restricting
the performance of abortions to licensed physicians. 1995 Mont.
Laws, ch. 321, § 2 (codified at Mont. Code Ann. § 50-20-109
(1995)). Similar rules exist in 40 other States in the N ation.1
The Montana law was challenged almost im-
1 See Ala. Admin. Code Rules 420-5-1-.01(2)(k),
420-5-1-.03(2)(a) (Supp. 1990) (limiting performance of abortions
to "physicians duly licensed in the State of Alabama," which in
turn requires meeting the criteria in Ala. Code § 34-24-70 (Supp.
1996)); Alaska Stat. Ann. §§ 08.64.200, 18.16.010(a)(1) (1996);
Ark. Code Ann. § 5-61-101(a) (1993);
id., § 17-95-403
(1995); Cal. Health & Safety Code Ann. § 123405 (West 1996) (as
interpreted under prior statutory designation in 74 Op. Cal. Atty.
Gen. 101 (1991)); Colo. Rev. Stat. § 12-36-107 (1991 and Supp.
1996);
id., §§ 18-6101(1),18-6-102 (1986); Conn. Agencies
Regs. § 19-13-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. §20-1O (Supp. 1997)); Del. Code Ann., Tit. 24, §§
1720, 1790(a) (Supp. 1996); Fla. Stat. §§ 390.001(1)(a), 390.001(3)
(1993); id., §§ 458.311, 459.0055 (1991 and Supp. 1997); Ga.
Code Ann. § 1612-141(a) (1996);
id., §43-34-27 (1994); Haw.
Rev. Stat. §§453-4, 45316(a)(1) (1993); Idaho Code § 18-608 (1997);
id., §§ 54-1803(3), 54-1803(4) (1994); Ill. Compo Stat., ch.
225, § 60/11 (1993);
id., ch. 720, §§ 510/2(2), 510/ 3.1
(1993); Ind. Code §§ 16-18-2-202,16-18-2-282, 16-34-2-1(1)(A)
(1993);
id., § 25-22.5-3-1 (1995); Iowa Code § 148.3 (Supp.
1997);
id., § 707.7 (Supp. 1997); Ky. Rev. Stat. Ann.
§§311.571, 311.750 (Michie 1995); La. Rev. Stat. Ann. §37:1272
(West Supp. 1997);
id., §§40:1299.35.1, 40:1299.35.2(A)
(West 1992); Me. Rev. Stat. Ann., Tit. 22, § 1598(3)(A) (1992);
id., Tit. 32, §§ 2571, 3271 (Supp. 1996); Md. Health Code
Ann. § 20-208 (1996); Md. Health Occ. Code Ann. § 14-307 (Supp.
1995); Mass. Gen. Laws, ch. 112, §§ 2, 12K, 12L, 12M (1996); Minn.
Stat. §§ 145.412, subd. 1(1), 147.02 (1989) (limiting performance
of abortions to licensed physicians and "physician[s] in training
under the supervision of ... licensed physician[s]"); Miss. Code
Ann. § 7325-3 (1995);
id., § 97-3-3(1) (1994) (as
interpreted in
Spears V.
State, 278 So. 2d 443 (Miss.
1973)); Mo. Rev. Stat. §§ 188.015(5), 188.020 (1996);
id.,
§334.031 (1989); Neb. Rev. Stat. §28-335 (1995);
id.,
§71-1,104 (Supp. 1996); Nev. Rev. Stat. § 442.250(1)(a) (1991);
id., § 630.160 (1995); N. J. Admin. Code § 13:35-4.2(b)
(1997) (limiting performance of abortions to "physician[s] licensed
to practice medicine and surgery in the State of New
970
Per Curiam
mediately 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,
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 instructions to reconsider the "balance of hardships"
and determine whether entry of a preliminary injunction was
ultimately warranted.
Ibid.
Jersey," which in turn requires meeting the criteria in N. J.
Stat. Ann. §§45:9-6, 45:9-7 (West 1991), and N. J. Stat. Ann.
§45:9-8 (West Supp. 1997)); N. M. Stat. Ann.
§§30-5-1(C),
30-5-3 (1994) (as interpreted in N. M. Op. Atty. Gen. 90-19
(1990)); N. M. Stat. Ann. § 61-6-11 (1996); N. C. Gen. Stat. §
14-45.1(a) (1993);
id., § 90-9 (Supp. 1996); N. D. Cent.
Code § 14-02.1-04(1) (1991);
id., §43-17-18 (1993); Ohio
Rev. Code Ann. § 2919.11 (1996);
id., §§ 4731.091, 4731.41
(1994); Okla. Stat., Tit. 59, § 493.1 (Supp. 1997);
id.,
Tit. 63, § 1-731(A) (1997); 18 Pa. Cons. Stat. §§3203, 3204(a)
(1983 and Supp. 1997); 63 Pa. Cons. Stat. §§ 271.6, 422.28 (1996);
R. 1. 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. 1. Gen. Laws § 5-37-2 (1995)); S. C. Code Ann. § 40-47-90
(Supp. 1996) (as implemented by S. C. Code Ann. Regs. §§81-80,
81-81, 81-90 (Supp. 1996)); S. C. Code Ann. §§44-41-10(b), 44-41-20
(1985); S. D. Codified Laws §34-23A-1(4) (Supp. 1997);
id.,
§§34-23A-3, 34-23A-4, 34-23A-5 (1994);
id., §36-4-11 (Supp.
1997); Tex. Health & Safety Code Ann. § 245.010(b) (1992); Tex.
Rev. Civ. Stat. Ann., Art. 4495b, § 3.04 (Vernon Supp. 1997); Utah
Code Ann. §§ 58-67-302, 58-68-302 (Supp. 1996);
id., §
76-7-302(1) (1995); Va. Code Ann. §§ 18.2-71, 18.2-72, 18.2-73,
18.2-74 (1996);
id., § 54.1-2930 (1994); Wash. Rev. Code §§
9.02.110, 9.02.120, 9.02.170(4) (Supp. 1997);
id., §§
18.57.020, 18.71.050 (Supp. 1997); Wis. Stat. § 448.01(5) (1988);
id., § 940.15(5) (1996); Wyo. Stat. § 33-26-303 (Supp.
1996);
id., § 35-6-111 (1994).
971
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 95-083GF-PGH (Mont., Nov. 5, 1996), App. to
Pet. for Cert. 31a32a. 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 information 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)).
972
Per Curiam
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 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." llA C. Wright, A. Miller, & M. Kane, Federal
Practice and Procedure § 2948, pp. 129-130 (2d ed. 1995) (emphasis
added; footnotes omitted).
973
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 [physicianassistants] 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 antiabortion 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 979-980. It is true that the law
"targeted" Cahill in the sense that she was 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
974
Per Curiam
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.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 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)
(per curiam), where, in the course of holding that the
Federal Constitution 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,
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
2 Since the record does not support a conclusion that "the
legislature's predominant motive,"
post, at 980, 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. 900 (1995),]
and
Shaw," post, at 981.
975
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., HamiltonBrown 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 § 4.18 (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 precedents.3 Second, the lower court's judgment
has produced 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.4 Indeed, plaintiffs
3 The dissent says that the Court of Appeals did not resolve any
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 981. 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.
4 See Alaska Stat. Ann. §§ 08.64.200, 18.16.010(a)(1) (1996);
Cal.
Health & Safety Code Ann. § 123405 (West 1996) (as
interpreted under prior statutory designation in 74 Op. Cal. Atty.
Gen. 101 (1991));
976
Per Curiam
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
Legislature.5
For the foregoing reasons, we grant the petition for certiorari,
reverse the judgment of the Court of Appeals, and remand the case
for further proceedings consistent with this opinion.
It is so ordered.
Haw. Rev. Stat. §§453-4, 453-16(a)(1) (1993); Idaho Code §
18-608 (1997);
id., §§ 54-1803(3), 54-1803(4) (1994); Nev.
Rev. Stat. § 442.250(1)(a) (1991);
id., § 630.160 (1995);
Wash. Rev. Code §§ 9.02.110, 9.02.120, 9.02.170(4) (Supp. 1997);
id., §§ 18.57.020, 18.71.050 (Supp. 1997).
5 The dissent contends that some States which restrict the
performance of 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 980-981. 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. §§458.303(1)(a), 458.327(1), 458.347 (1991 and Supp.
1997); post, at 980-981, 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. § 458.327(1) (Supp. 1997), 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. §§ 390.001(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 thEe]
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).
977
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, dissenting.
The Court may ultimately prove to be correct in its conclusion
that the Court of Appeals should have affirmed the District Court's
refusal to preliminarily enjoin that portion of the statute
disqualifying Susan Cahill from performing abortions in Montana.
Nevertheless, I do not agree that this decision has sufficient
importance to justify review of the merits at this preliminary
stage of the proceeding. The background of the litigation and a
comment on the Court of Appeals' discussion of legislative motive
will help to explain why I am not persuaded that the Court's
summary disposition is appropriate.
Since 1977, respondent Cahill, a licensed physician's assistant,
has been performing first-trimester abortions in Kalispell,
Montana, under the supervision of Dr. James Armstrong. She is the
only nonphysician in Montana who performs abortions.
Since 1974, Montana law has provided that an abortion could be
performed only by a licensed physician. See Mont. Code Ann. §
50-20-109(1)(a) (1995). Because the term "licensed physician," as
used in that statute, was construed to include licensed physician
assistants working under the direct supervision of a physician
pursuant to a state approved plan,l it did not disqualify Cahill
from continuing her work with Dr. Armstrong.
ISee
Doe v.
Esch, No. CV-93-060-GF-PGH (Nov. 26,
1993), App. to Pet. for Cert. 33a (enjoining State from enforcing
the licensed physician provision against a physician assistant,
supervised by a licensed physician, who has received approval from
the State Board of Medical Examiners to conduct abortions); see
also Mont. Code Ann. § 37-20-403 (1993) (recognizing physician
assistant as agent of the supervising physician);
id., §
37-20303 (1995) (authorizing Board of Medical Examiners to approve
physician assistant utilization plans detailing range of physician
assistants' practice); 906 F. Supp. 561, 564 (Mont. 1995) (noting
that the Montana
978
In 1995, the Montana Legislature enacted the statute at issue in
this litigation. This statute banned physician assistants from
performing abortions, provided that secondtrimester abortions could
only be performed in licensed hospitals, and prohibited any form of
advertising of abortion services. See 1995 Mont. Laws, ch. 321. The
record strongly indicates that the physician assistant provision
was aimed at excluding one specific person-respondent Cahillfrom
the category of persons who could perform abortions. Although this
is not apparent on the face of the statute, the parties agree that
because Cahill is the only physician assistant who performs
abortions in the State of Montana, she is the only person affected
by the ban. Furthermore, the legislative hearings preceding the
enactment of the statute contain numerous references to Cahill by
name,2 and the injunction against enforcement of this provision of
the statute pending the appeal applies only to Cahill.3
The likelihood that the legislature may have enacted the statute
for the sole purpose of targeting Cahill is suggested by the fact
that the other two provisions in the 1995 Actthe hospitalization
requirement and the advertising banwere clearly invalid because
they were reenactments of two provisions that already had been held
unconstitutional in
Board of Medical Examiners construed its authority to include
approval of Cahill's utilization plan allowing her to perform
first-trimester abortions).
2 See Minutes of Committee on Public Health, Welfare &
Safety, Montana Senate, 54th Legislature (Mar. 10, 1995), reprinted
in App. to Pet. for Cert. 50a-60a.
3 "1. The injunction shall apply only to Plaintiff Susan Cahill
and will allow her to practice under those terms in
effect
prior to October 1, 1995. Plaintiff Cahill must be supervised by a
licensed physician and shall operate under the physician
assistant-certified utilization plan previously approved by the
Montana State Board of Medical Examiners that includes the
performance of abortions pursuant to the provisions of Mont. Code
Ann. Title 37, chapter 20. No other physician assistants-certified
will be allowed to perform abortions in Montana under the terms of
this stipulation or the Court's order." App. to Pet. for Cert.
32a.
979
earlier litigation,4 and that the State, in this litigation,
conceded to be unconstitutional. 5 This history, together with
Cahill's claim that the same antiabortion groups who had repeatedly
targeted Cahill and Armstrong's practice were the proponents of the
1995 legislation, provided the basis for Cahill's argument that the
statute was invalid as a bill of attainder, as well as an undue
burden on the right to an abortion.
The discussion of legislative motive in the opinion of the Court
of Appeals was a response to two decisions of this Court that
suggest that such an inquiry is sometimes proper. In determining
whether the "requirements serve no purpose other than to make
abortions more difficult," within the meaning of
Planned
Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833, 901
(1992), the Court of Appeals looked to our recent decisions in
Miller v.
Johnson, 515 U. S. 900 (1995), and
Shaw v.
Hunt, 517 U. S. 899 (1996).6
Today, the Court ignores those cases, but concludes that the record
is barren of evidence of any improper motive. As the discussion
above indicates, this is not quite accurate; there is substantial
evidence indicating that the sole purpose of the stat-
4 In
Doe v.
Esch, supra, the court enjoined
enforcement of the hospitalization requirement, and in
Doe
v.
Deschamps, 461 F. Supp. 682 (Mont. 1976), the court held
that the advertising and solicitation prohibition were
unconstitutional.
5 Respondents challenged these two provisions-along with the ban
on performance of abortions by physician assistants, and the State
did not contest that it was bound by the prior judgments from
enforcing these prohibitions. See 906 F. Supp., at 563.
6 The Court of Appeals reasoned: "Legislative purpose to
accomplish a constitutionally forbidden result may be found when
that purpose was 'the predominant factor motivating the
legislature's decision.'
Miller[, 515 U. S., at 916]. Such a
forbidden purpose may be gleaned both from the structure of the
legislation and from examination of the process that led to its
enactment.
Shaw[, 517 U. S., at 905-907]. A determination of
purpose in the present case, then, may properly require an
assessment of the totality of circumstances surrounding the
enactment of Chapter 321, and whether that statute in fact can be
regarded as serving a legitimate health function."
94 F.3d
566, 567
(CA9 1996).
980
ute was to target a particular licensed professional. The
statute removed the only physician assistant in the State who could
perform abortions, yet there was no evidence that her practice
posed any greater health risks than those performed by doctors with
the assistance of unlicensed personnel. When one looks at the
totality of circumstances surrounding the legislation, there is
evidence from which one could conclude that the legislature's
predominant motive was to make abortions more difficult.
In any event, the Court of Appeals did not reach the
constitutional issue that is presented by this litigation. The
Court of Appeals simply remanded this action to the District Court
because it found that the District Court had unduly confined its
analysis of what constitutes an impermissible purpose. Although the
parties stipulated to the entry of a limited injunction pending
appeal that temporarily protects Cahill and no one else, there is
no indication yet from either the District Court or the Court of
Appeals that either a permanent or preliminary injunction will ever
be entered against enforcement of the physician-only provision of
the statute.
As I read the decisions of the Court of Appeals and the District
Court, this case involves an extremely narrow issue concerning the
State's power to reduce by one the small number of professionals in
Montana who can lawfully perform abortions in that State. I do not
perceive the slightest threat to the 40 "physician only" laws cited
at the outset of the Court's opinion, particularly since some of
these States might allow licensed assistants to perform abortions
under the supervision of a physician as was the practice in Montana
prior to 1995.7 Because physician assistants working under
7 Some of the States that have physician-only laws also have
statutes that broadly define the medical duties that physicians can
delegate to physician assistants. See,
e. g., Conn.
Gen. Stat. §§20-12a, 20-12d (Supp. 1997); Fla. Stat. § 458.347
(Supp. 1997); Ill. Compo Stat., ch. 225, §§ 95/1, 95/ 4(3) (1993
and Supp. 1997); Ind. Code §§ 25-27.5-5-2, 25-27.5-6-3 (1995);
981
the supervision of a physician might be included in the
definition of "physician," it is not clear at this stage that the
Court of Appeals' decision challenges any of this Court's
statements (for the most part dicta),
ante, at 974-975, that
a State may restrict the performance of abortions to physicians. I
think the Court would be well advised to await further developments
in the case before intervening. Surely, the Court of Appeals'
determination that a further inquiry into the facts is appropriate
before making a final decision on the motion for a preliminary
injunction does not provide a proper basis for summary action in
this Court.
Having decided to take the case, however, it does seem to me
that the Court should provide some enlightenment as to whether the
Court of Appeals misread this Court's opinions in
Miller and
Shaw v.
Hunt.
In my judgment, the petition for certiorari should be
denied.
Iowa Code §§
148C.1, 148CA (1989); La. Rev. Stat. Ann.
§§37:1360.22(5), 37:1360.28, 37:1360.31.A(1), 37:1360.31.B (West
Supp. 1997); Me. Rev. Stat. Ann., Tit. 32, §3270-A (Supp. 1996);
Mass. Gen. Laws § 112:9E (1996); Neb. Rev. Stat. §71-1,107.17
(1996); R. I. Gen. Laws §5-54-8 (1995). My research indicates that
Montana and California are the only States that explicitly prohibit
physician assistants from performing abortions. See 74 Op. Cal.
Atty. Gen. 101 (1991) (declining to construe the physician
assistant statute to allow physician assistants to perform
abortions).
982
The next page is purposely numbered 1101. The numbers between
981 and 1101 were intentionally omitted, in order to make it
possible to publish the orders with
permanent page numbers,
thus making the official citations available upon publication of
the preliminary prints of the United States Reports.
983
MARCH 3,1997 Certiorari Granted-Vacated and Remanded
No. 95-1028. UNITED STATES
V. FADEM ET AL. C. A. 9th
Cir.
Certiorari granted, judgment vacated, and case remanded for
further consideration in light of
United States v.
Brockamp, 519
U. S. 347 (1997). Reported below:
52 F.3d
202.
Miscellaneous Orders
No. D-1752. IN RE DISBARMENT OF FRIEZE. Disbarment entered. [For
earlier order herein, see 519 U. S. 1004.]
No. D-1756. IN RE DISBARMENT OF ALLEN. Disbarment entered. [For
earlier order herein, see 519 U. S. 1005.]
No. D-1786. IN RE DISBARMENT OF MARONEY. John W. Maroney, of
Portland, Ore., is suspended from the practice of law in this
Court, and a rule will issue, returnable within 40 days, requiring
him to show cause why he should not be disbarred from the practice
of law in this Court.
No. M-61. JOSEPH ET AL.
V. QUAGLINO TOBACCO & CANDY
CO. ET AL. Motion to direct the Clerk to file petition for writ of
certiorari out of time denied.
No. M-62. DUNBAR
V. IOWA. Motion to direct the Clerk to
file petition for writ of certiorari out of time under this Court's
Rule 14.5 denied.
No. 96-79. BOGGS
v. BOGGS ET AL. C. A. 5th Cir.
[Certiorari granted, 519 U. S. 957.] Motion of the Acting Solicitor
General for leave to file a supplemental brief as
amicus
curiae after argument granted.
No. 96-272. METROPOLITAN STEVEDORE CO.
V. RAMBO ET
AL.
C. A. 9th Cir. [Certiorari granted, 519 U. S. 1002.] Motion of
the Acting Solicitor General for divided argument granted.
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