Cite as: 520 U. S. 968 (1997)
Stevens, J., dissenting
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,1 it did not disqualify Cahill from continuing her work with Dr. Armstrong.
1 See 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., § 37-20- 303 (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
977
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 NextLast modified: October 4, 2007