138 PROPERTY NATURE OF WATER AND WATER RIGHTS reason for the rule that there can be no property in the corpus of the water running in a stream is not that it is dedicated to the public, but because of the fact that so long as it continues to run there cannot be that possession of it which is essential to ownership."4 The principle has been declared as a part of legislative policy as well.5 The courts have held that this principle applies not only to appropriators, who merely acquire rights to divert and use the water for the purpose of their appropriations,6 but to riparian owners as well.7 "Under either doctrine," said the Montana Supreme Court, "the corpus of running water in a natural stream is not the subject of private ownership, though this elementary principle is apparently overlooked in some of the decided cases."8 municipal water had been diverted. The South Dakota Supreme Court acknowledged that "In a certain limited sense water flowing in a natural stream belongs to the public," subject to private rights of use by riparians and appropriators: St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 268, 143 N. W. 124 (1913). Compare the statement in Dougan \. Board of County Commissioners, 141 Kans. 554, 562, 43 Pac. (2d) 223 (1935), that the riparian landowner owned the water in the stream just as much as he owned the bed or banks thereof. The ownership that the court was talking about probably pertained to rights of use rather than particles of water. The same question may be raised about statements in Dunsmuir v. Port Angeles Gas, Water, Electric Light & Power Co., 24 Wash. 104,114, 63 Pac. 1095 (1901), and Colburn v. Winchell, 97 Wash. 27, 29, 165 Pac. 1078 (1917), to the effect that waters of a nonnavigable stream are deemed to be a part of the soil over which they flow, particularly in view of statements in other opinions (Crook v. Hewitt, 4 Wash. 749, 31 Pac. 28 (1892), and Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 583, 38 Pac. 147 (1894)) to the effect that the riparian proprietor has no property in the water itself, but a simple usufruct while it passes along. ^Palmer v. Railroad Commission, 167 Cal. 163, 168, 138 Pac. 997 (1914). 5The California Water Code § 1001 (West 1956), provides that nothing in the division relating to appropriative water rights shall be construed as giving or confirming any right in the corpus of any water. The Kansas appropriation statute provides that an appropriation of surface or ground water shall not constitute ownership of such water: Kans. Stat. Ann. § 82a-707 (1969). 6Bader Gold Min. Co. v. Oro Electric Corp., 245 Fed. 449, 451-452 (9th Cir. 1917); South Texas Water Co. v. Bieri, 247 S. W. (2d) 268, 272 (Tex. Civ. App. 1952, error refused n.r.e.). nRancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 554-555, 81 Pac. (2d) 533 (1938); Crawford Co. v. Hathaway, 67 Nebr. 325, 352, 93 N. W. 781 (1903), overruled on different matters by Wasserburger v. Coffee, 180 Nebr. 147, 141 N. W. (2d) 738 (1966); In re Hood River, 114 Oreg. 112, 181, 213, 227 Pac. 1065 (1924);Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466,474476,128 N. W. 702 (1910); TexasCo. v. Burkett, 117 Tex. 16, 25, 296 S. W. 273 (1927); Rigney v. Tacoma Light & Water Co., 9 Wash. 576,583, 38 Pac. 147 (1894). 8Mettler v. Ames Realty Co., 61 Mont. 152, 161-162, 201 Pac. 702 (1921). With respect to streamflow, the rights of the appropriator, "like those of a riparian owner, are strictly usufructuary." Kidd v. Laird, 15 Cal. 161, 179-180, 76 Am. Dec. 472,4 Morr. Min. Rep. 571 (1860). "Neither at common law, nor under the law of appropriation, does the proprietor or appropriator own the water in the stream." Salt Lake City v. Salt Lake City Water & Electrical Power Co., 25 Utah 456,465, 71 Pac. 1069 (1903).


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Rol'gayzer A.A.. Features of the Language-Specific Categorization of Celestial Bodies Concepts // Philology: scientific researches. – 2016. – № 3. – P. 264-267. DOI: 10.7256/2305-6177.2016.3.18924.
Review: In this article Rolgayzer describes the main means of the language-related categorization of celestial bodies in the Russian and French languages. The researcher also defines the most efficient lexico-grammatical means that express categories of evaluation, time, amount and dimension. The phenomenon of categorization covers all spheres and aspects of human existence. The subject of the research is the language-related objectivation of category features as one of the ways to order and describe the conceptual picture of the world. The object of the research is celestial bodies concepts verbalized in the form of Sun, Moon and Stars. In the course of the research the author has used the method of the conceptual analysis to define and describe category features constituting the structure of the viewed concepts as well as the method of the contextual analysis. The scientific novelty of the research is caused by the fact that the author defines category features of celestial bodies concepts in terms of Russian and French linguocultures. The main conclusion of the research is that categorization is one of the basic terms of the humanity and the main means of the systematizatino of objects and phenomena in the surrounding world.
Kratkiy slovar' kognitivnykh terminov / pod obshch. red. E.S. Kubryakovoy. M., 1997. 245 s.
Boyarskaya E.L. Kategorizatsiya kak bazovaya kognitivnaya protsedura // Vestnik BFU im. I. Kanta. 2011. №2. S 18-28.
Emel'yanova L.Yu. K voprosu o kategorizatsii znaniy v yazyke // Uchenye zapiski RGSU. 2013. №3 (116). S. 133-141.
Ma T.Yu. Klassicheskie, prototipicheskie i aktsidentnye kategorii // Vestnik NNGU. 2010. №5-1. S. 373-377.
Magirovskaya O.V. Osobennosti kontseptualizatsii i kategorizatsii mira v ramkakh kognitivnoy deyatel'nosti nablyudatelya // Vestnik ChelGU. 2008. №21. S. 105-114.
Bochkarev A.E. K probleme kategorizatsii v teorii prototipov: pro et contra // Vestnik NNGU. 2015. №1. S. 249-254.
Pimenova M.V., Balashova N.P. Somaticheskie metafory luny v sovremennykh poeticheskikh proizvedeniyakh // Gumanitarnyy vektor. Seriya: Filologiya, vostokovedenie. 2015. № 4 (44). S. 32-38.
Sidorova N.P. Sopostavitel'nyy analiz struktur i sposobov aktualizatsii russkogo i angliyskogo kontseptov luna i moon: avtoref. dis. ... kand. filol. nauk. Kemerovo, 2010. 22 s.
Rol'gayzer A.A. Kontseptual'nye issledovaniya prirodnogo mira (na primere kontseptov ‘zvezda' i ‘étoile') // Vestnik Kemerovskogo gosudarstvennogo universiteta. 2013. № 4-1 (56). S. 169-174.
Pimenova M.V., Kondrat'eva O.N. Vvedenie v kontseptual'nye issledovaniya. M.: Flinta, 2011. 176 s.
Karasik V.I. Yazykovoy krug: lichnost', kontsepty, diskurs. Volgograd: Peremena, 2002. 477 s.
Arutyunova N.D. Yazyk i mir cheloveka. 2-e izd., ispr. M.: «Yazyki russkoy kul'tury», 1999. 896 s.
Tolstoy N.I. Vremeni magicheskiy krug (po predstavleniyam slavyan) // Logicheskiy analiz yazyka. Yazyk i vremya; Otv. red. N.D. Arutyunova, T.E. Yanko. M.: «Indrik», 1997. S. 17–27.
Rol'gayzer A.A. Ob'ektivatsiya arkhetipicheskikh mental'nykh obrazovaniy v russkom i frantsuzskom yazykakh (na primere slov «zvezda» i «étoile»): avtoref. dis.... kand. filol. nauk. Volgograd, 2015. 20 s.
Nilogov A.S.. From the Antilanguage Methodology to the Antilanguage Genealogy // Philology: scientific researches. – 2016. – № 1. – P. 70-85. DOI: 10.7256/2305-6177.2016.1.17503.
Review: Based on the analysis of the lingvogeneological materials, the author of the article demonstrates how the antilanguage methodology can be applied. The object of the research is the ontological status of word/antiword. The subject of the research is particular classes of words/antiwords such as genetisms and genealogisms which allow to solve many historiographical issues both in classical documentary genealogy and modern genetic genealogy. The point at issue is the problem of authentic determination of personal names of those ancestors of ours whose names could be hardly read or even missed in primary sources. In his research Nilogov uses the methods of genealogical, hermeneutical, historical, historiographical, chronological and etymological analysis as well as the method of antilanguage reconstruction. The results of the research are illustrated by linguistic data (anthroponyms) from the author's geneaological tree which contains over thousand names based on primary sources such as the Russian State Archive of Ancient Acts, State Archive of the Perm Region, State Archive of the Kirov Region and Civil Status Registration Offices. For the first time in the academic literature the author introduces such classes of words/antiwords as genetisms and genealogisms and provides a description of their types (subclasses of words/antiwords).
El'kin M. Yu. Problemy, voznikayushchie pri sostavlenii rodosloviy odnofamil'tsev // Materialy Tret'ey Ural'skoy rodovedcheskoy nauchno-prakticheskoy konferentsii (14–15 noyabrya 2003 g., Ekaterinburg). Ekaterinburg, 2007. S. 19–22.
Perepis' Kungurskogo uezda 1778 goda // Gosudarstvennyy arkhiv Sverdlovskoy oblasti. F. 116. Op. 1. D. 133.
(1678) g., avgust. – Perepisnaya kniga goroda Kaygorodka i Kaygorodskogo uezda perepisi Nikity Danilovicha Glebova i pod'yachego Timofeya Antropova // Rossiyskiy gosudarstvennyy arkhiv drevnikh aktov. F. 1209. Op. 1. D. 184.
(1703) g. – Dozornaya kniga Kungurskogo uezda // Rossiyskiy gosudarstvennyy arkhiv drevnikh aktov. F. 214. Op. 1. D. 1254.
(1679) g., yanv. 20(30). – Perepisnaya kniga Kungurskogo uezda perepisi Dmitriya Romanovicha Zhukova i pod'yachego Petra Akhmatova // Rossiyskiy gosudarstvennyy arkhiv drevnikh aktov. F. 1209. Op. 1. D. 226.
Shumkov A. A. Psevdogenealogicheskie problemy identifikatsii odnofamil'tsev (doklad) // Tret'i Peterburgskie genealogicheskie chteniya «Odnofamil'nye rody». 11 noyabrya 1999 g., Sankt-Peterburg.
Metricheskaya kniga Svyato-Troitskoy tserkvi s. Staryy posad Osinskogo uezda Permskoy gubernii dlya zapisi rodivshikhsya, brakom sochetavshikhsya i umershikh za 1791 god // Gosudarstvennyy arkhiv Permskogo kraya. F. 109. Op. 1. D. 148.
Palagina V. V. K voprosu o lokal'nosti russkikh antroponimov kontsa XV–XVII vv. // Voprosy russkogo yazyka i govorov. Trudy Tomskogo gos. un-ta im. V. V. Kuybysheva. 1968. T. 197. S. 83–92.
Polyakova E. N. Formirovanie permskikh otymennykh familiy v XVII–XVIII vekakh // Vestnik Permskogo universiteta. 2010. Vyp. 3(9). S. 7–17.
(1647), 27 marta (6 aprelya). – Perepisnaya kniga Solikamskogo uezda voevody Prokofiya Kuz'micha Elizarova. Podlinnik // Rossiyskiy gosudarstvennyy arkhiv drevnikh aktov. F. 1209. Op. 1. D. 474.
Bushmakin S. K. Dokhristianskie lichnye imena udmurtov // Lichnye imena v proshlom, nastoyashchem, budushchem. M., 1970. S. 263–267.
Nilogov A. S. Otkuda est' poshli Kotegovy // Genealogicheskiy vestnik. 2014. № 49. S. 28–36.
Perepisnaya kniga voevody Prokop'ya Kozmicha Elizarova 7155 (1647) g. po votchinam Stroganovykh // Trudy Permskoy uchenoy arkhivnoy komissii. Perm', 1893. Vyp. 2. S. 87–146.
Krivoshchekova-Gantman A. S. Russkie familii komi-permyatskogo proiskhozhdeniya // Yazyki i onomastika Prikam'ya. Perm', 1973. S. 76–86.
Slovar' permskikh familiy. Sostavitel' E. N. Polyakova. Perm', 2005.
Krivoshchekova-Gantman A. S. Familii ot imen na-og,-eg // Onomastika Povolzh'ya. Vyp. 4. Saransk, 1976. S. 91–94.
Kobrin V. B. Oprichnina. Genealogiya. Antroponimika. M., 2008.
(1614/1615) g. – Dozornaya kniga posadov i tyaglykh dereven' vyatskikh gorodov i uezdov pis'ma i dozora voevod kn. Fedora Andreevicha Zvenigorodskogo, Vasiliya Terent'evicha Zhemchuzhnikova i d'yaka Mikhaila Ordyntseva (Ordintsova), Chernovik podlinnika za skrepami kn. F. A. Zvenigorodskogo i d'yaka M. Ordyntseva // Rossiyskiy gosudarstvennyy arkhiv drevnikh aktov. F. 1209. Op. 1. D. 1029.
(1614/1615) g. – Dozornaya kniga monastyrskikh votchin i obrochnykh lavok, pozhen', kuznits, rybnykh lovel' na posade i v uezdakh vyatskikh gorodov pis'ma i dozora voevod kn. Fedora Andreevicha Zvenigorodskogo, Vasiliya Terent'evicha Zhemchuzhnikova i d'yaka Mikhaila Ordyntseva (Ordintsova), Podlinnik za skrepoy kn. F. A. Zvenigorodskogo // Rossiyskiy gosudarstvennyy arkhiv drevnikh aktov. F. 1209. Op. 1. D. 1030.
Klesov A. A. Proiskhozhdenie Ryurikovichey: DNK-genealogiya dokazyvaet. [Elektronnyy resurs] – URL: http://pereformat.ru/2013/02/ryurikovichi/ (data obrashcheniya: 01.01.2016).
Volkov V. G. Vse li Ryurikovichi proiskhodyat ot odnogo predka? [Elektronnyy resurs] – URL: http://trog.narod.ru/articles/rurikids/Rurikids.htm, http://trog.narod.ru/articles/rurikids/Rurikids.pdf (data obrashcheniya: 01.01.2016).
Metricheskaya kniga Svyato-Troitskoy tserkvi s. Staryy posad Kungurskogo uezda (Kungurskoy (Permskoy) provintsii) Kazanskoy gubernii dlya zapisi rodivshikhsya, brakom sochetavshikhsya i umershikh za 1756 god // Gosudarstvennyy arkhiv Vyatskoy oblasti. F. 237. Op. 74. D. 1690.
Sabitov Zh. M. Etnogenez kazakhov s tochki zreniya populyatsionnoy genetiki // The Russian Journal of Genetic Genealogy (Russkaya versiya). 2013. Tom 5. № 1. S. 29–47. [Elektronnyy resurs] – URL: http://rjgg.molgen.org/index.php/RJGGRE/article/view/129/147 (data obrashcheniya: 01.01.2016).
Pistsovaya kniga Ivana Ignat'evicha Yakhontova da pod'yachego Tret'yaka Karpova Permi Velikoy 7087 (1578/1579) g. Spisok s perepisnykh knig // Rossiyskaya gosudarstvennaya biblioteka. Otdel rukopisey. F. 256. D. 308.
Kopiya «Knigi soshnogo pis'ma goroda Kamskogo posada pis'ma i mery pistsa Ivana Yakhontova i pod'yachego Tret'yaka Karpova 1578/1579 gg.» (spisok so spiska, vklyuchennyy v sbornik 2-y pol. XVIII v.) // Arkhiv Sankt-Peterburgskogo Instituta istorii RAN. F. 115. Op. 1. D. 442.
Knigi soshnogo pis'ma Permskie-Cherdynskie i Cherdynskogo uezda pis'ma i mery pistsa Ivana Ignat'evicha Yakhontova da pod'yachego Tret'yaka Karpova vosem'desyat sed'mogo goda (1579 goda) s nekotorymi poyasneniyami V. N. Shishonko. Perm', 1879.
Mezhevaya kniga Cherdynskogo i Usol'skogo uezda Sarycha Shestakova 117 goda (1608/1609 godov) // Arkhiv Sankt-Peterburgskogo Instituta istorii RAN. F. 115. Op. 1. D. 920.
Perepisnaya kniga Permi Velikoy (Cherdyni) 7.4.7155 (7(17).4.1647) goda perepisi voevody Prokofiya Kuz'micha Elizarova. Podlinnik // Rossiyskiy gosudarstvennyy arkhiv drevnikh aktov. F. 1209. Op. 1. D. 351.
Perepisnaya kniga Cherdyni (Permi Velikoy) 10.4.7186 (10(20).4.1678) goda perepisi knyazya Fedora Fedorovicha Bel'skogo i pod'yachego Yakova Menshikova // Rossiyskiy gosudarstvennyy arkhiv drevnikh aktov. F. 1209. Op. 1. D. 352.
Pistsovaya kniga Mikhaila Fedorovicha Kaysarova, d'yaka Marka Martem'yanova, da pod'yachikh Isaka Leont'eva, da Afanasiya Breeva Permi Velikoy 7131 i 7132 (1623 i 1624) gg. Spisok s perepisnykh knig // Rossiyskaya gosudarstvennaya biblioteka. Otdel rukopisey. F. 256. D. 308.
Revizskaya skazka Cherdynskogo uezda 1834 goda // Gosudarstvennyy arkhiv Permskogo kraya. F. 111. Op. 1. D. 2358.
Revizskaya skazka Cherdynskogo uezda 1762 goda // Rossiyskiy gosudarstvennyy arkhiv drevnikh aktov. F. 350. Op. 2. D. 4055.
Nilogov A. S. Otkuda est' poshli Nilogovy // Genealogicheskiy vestnik. 2012. № 44. S. 27–55.
Metricheskaya kniga Kosinskoy Nikolaevskoy tserkvi dlya zapisi rodivshikhsya, brakom sochetavshikhsya i umershikh za 1767 god // Gosudarstvennyy arkhiv Permskogo kraya. F. 37. Op. 3. D. 303. [Elektronnyy resurs] – URL: http://www.pokolenia.permkrai.ru/Perm/%D0%A4.37.%D0%9E%D0%BF.3.%D0%94.303/00000381.jpg (data obrashcheniya: 01.01.2016).
Metricheskie knigi Kosinskoy Nikolaevskoy tserkvi dlya zapisi rodivshikhsya, brakom sochetavshikhsya i umershikh za 1800–1829 gody // Pokoleniya Permskogo kraya. [Elektronnyy resurs] – URL: https://pokolenia.permkrai.ru/geography/view/56 (data obrashcheniya: 01.01.2016).
Nilogov A. S. Ontologicheskiy status slova/antislova // Filologiya: nauchnye issledovaniya. 2015. № 3. S. 241–252. DOI: 10.7256/2305-6177.2015.3.16615.
Metricheskaya kniga Kosinskoy Nikolaevskoy tserkvi dlya zapisi rodivshikhsya, brakom sochetavshikhsya i umershikh za 1843 god // Gosudarstvennyy arkhiv Permskogo kraya. F. 719. Op. 10. D. 1173.
Metricheskie knigi Cherdynskogo uezda za 1760–1779 gody // Gosudarstvennyy arkhiv Permskogo kraya. F. 37. Op. 3. D. 303. [Elektronnyy resurs] – URL: http://www.pokolenia.permkrai.ru/Perm/%D0%A4.37.%D0%9E%D0%BF.3.%D0%94.303/ (data obrashcheniya: 01.01.2016).
Kharchenko V. K., Chernikova E. M. Lingvogenealogiya: Imya sobstvennoe v zhanre semeynykh rodoslovnykh. M., 2010.
Bakhtin M. M. Dopolneniya i izmeneniya k «Rable» // Voprosy filosofii. 1992. № 1. S. 134–164.
Asadova A.Yu., Razduev A.V.. Eponymy in Digital Photography and Nanotechnology Terminology: a Contrastive-Comparative Aspect // Philology: scientific researches. – 2015. – № 4. – P. 355-366. DOI: 10.7256/2305-6177.2015.4.16916.
Review: The article is devoted to the study of eponymic terminological units of the spheres of digital photography and nanotechnologies in the contrastive-comparative aspect. It considers a short story of appearance of the term «eponym», the morphological and syntactic structure and from the point of view of anthropocentrism the word-formative models of eponymic terms as terminological units formed with the help of proper names. It is stated that the majority of such terminological units are correlated with the surnames of scientists who participated in the creation and development of any special objects, who made a certain discovery in the fields in question. A complex method of research is applied which includes definitional, contextual types of analysis, method of continuous selection of terms. Digital photography and nanotechnology terminologies, despite some distinctions in their nature and peculiarities of term-derivation in the Russian and English languages, are no exception. Attention is paid to the peculiarities of spelling of eponymic terms with small and capital letters in both languages, as well as to the abbreviating of onymic and appellative components. The authors come to the conclusion of the significance of eponymic terms in the spheres of digital photography and nanotechnologies, despite their relatively small amount in the analyzed terminological systems. Eponymic terms of the spheres of digital photography and nanotechnologies in the modern Russian and English languages are characterized by the different morphological-syntactic structure, the presence of eponymic and non-eponymic synonymic terms, a clearly expressed tendency to abbreviation.
Formaty izobrazheniy JPG, TIFF, RAW. URL: http://www.photoline.ru/line/teoriya-fotografii/443-formaty-izobrazhenij-jpg-tiff-raw (data obrashcheniya: 01.12.2015).
Carl Zeiss AG. URL: https://en.wikipedia.org/wiki/Carl_Zeiss_AG (data obrashcheniya: 10.12.2015).
Angénieux retrofocus. URL: https://en.wikipedia.org/wiki/Angénieux_retrofocus (data obrashcheniya: 10.12.2015).
Cooke triplet. URL: https://en.wikipedia.org/wiki/Cooke_triplet (data obrashcheniya: 10.12.2015).
Double-Gauss lens. URL: https://en.wikipedia.org/wiki/Double-Gauss_lens (data obrashcheniya: 10.12.2015).
Fotogora. Kazhdyy fotograf zhelaet znat' pro 6 osnovnykh rezhimov osveshcheniya portreta. URL: http://fotogora.ru/?page_id=1571 (data obrashcheniya: 10.12.2015).
Wratten number. URL: https://en.wikipedia.org/wiki/Wratten_number (data obrashcheniya: 10.12.2015).
Photographytips.com. URL: http://www.photographytips.com/page.cfm/2047 (data obrashcheniya: 10.12.2015).
Nikon. Glossary. URL: http://www.nikonusa.com/en/learn-and-explore/photography-glossary/index.page (data obrashcheniya: 10.12.2015).
Kel'vin. URL: https://ru.wikipedia.org/wiki/Kel'vin (data obrashcheniya: 05.12.2015).
A Glossary of Photographic Terms. URL: http://www.mir.com.my/rb/photography/glossary/terms_k_n.htm (data obrashcheniya: 10.12.2015).
Slovar' angloyazychnykh terminov i sokrashcheniy v tsifrovoy fotografii. URL: http://www.kutuzov-photo.ru/index.php?option=com_content&task=view&id=93&Itemid=97 (data obrashcheniya: 01.12.2015).
Slovar' terminov pro ob'ektivy. URL: http://lens-club.ru/glossary.html (data obrashcheniya: 01.12.2015).
Dzhozefsonovskiy perekhod. URL: http://thesaurus.rusnano.com/wiki/article775 (data obrashcheniya: 05.12.2015).
Gavrileyko Yu.A. Eponimiya nauchnykh terminov. URL: http://www.gavrilenko-nn.ru/publications/564/ (data obrashcheniya: 01.12.2015).
Mekhanizm rosta Vol'mera-Vebera. URL: http://thesaurus.rusnano.com/wiki/article1171 (data obrashcheniya: 05.12.2015).
Chastitsy Yanusy. URL: http://thesaurus.rusnano.com/wiki/article447 (data obrashcheniya: 05.12.2015).
Effekt Messbauera. URL: http://thesaurus.rusnano.com/wiki/article2039 (data obrashcheniya: 05.12.2015).
Sootnoshenie Kholla-Petcha. URL: http://thesaurus.rusnano.com/wiki/article827 (data obrashcheniya: 05.12.2015).
Potentsial Lennarda-Dzhonsa. URL: http://thesaurus.rusnano.com/wiki/article1565 (data obrashcheniya: 05.12.2015).
Bar'er Erlikha-Shvobelya. URL: http://thesaurus.rusnano.com/wiki/article555 (data obrashcheniya: 05.12.2015).
Vikhr' Abrikosova. URL: http://thesaurus.rusnano.com/wiki/article24392 (data obrashcheniya: 05.12.2015).
Sila Kazimira. URL: http://thesaurus.rusnano.com/wiki/article1683 (data obrashcheniya: 05.12.2015).
Prizma Abbe. URL: http://translate.academic.ru/Prizma_Abbe/ru/en/ (data obrashcheniya: 01.12.2015).
Ugol Bryustera. URL: http://translate.academic.ru/Ugol%20Bryustera/ru/en/1 (data obrashcheniya: 01.12.2015).
Abbe condenser. URL: http://translate.academic.ru/Abbe%20condenser/en/ru/ (data obrashcheniya: 01.12.2015).
Fedosyuk Yu.A. Russkie familii: populyarnyy etimologicheskiy slovar'. 6-e izd., ispr. M.: Flinta: Nauka, 2006. 240 s.
Leychik V.M. Terminovedenie. Predmet, metody, struktura. M.: URSS, 2009. 256 s.
Chislo Abbe. URL: http://translate.academic.ru/Chislo%20Abbe/ru/en/1 (data obrashcheniya: 01.12.2015).
Latu M.N. Yazykovaya lichnost' v terminologicheskoy nominatsii: mekhanizmy reprezentatsii nauchnogo podkhoda vo vnutrenney forme termina // Kognitivnye issledovaniya yazyka. 2015. № 20. S. 379-386.
Alimuradov O.A., Latu M.N. Osobennosti terminologicheskoy nominatsii: kognitivno-semanticheskiy podkhod (na materiale kitayskoy i angliyskoy terminologii boevykh iskusstv) // Filologicheskie nauki. Voprosy teorii i praktiki. 2008. № 1-2. S. 6-13.
Starichenok V.D. Bol'shoy lingvisticheskiy slovar'. Rostov-na-Donu, Feniks, 2008. 810 s.
Leychik V.M. Lyudi i slova: Kak rozhdayutsya i zhivut slova v russkom yazyke / Otv. red. G.V. Stepanov. 2-e izd., ispr. i dop. M.: Knizhnyy dom «LIBROKOM», 2009. 255 s.
Eponim. URL: https://ru.wikipedia.org/wiki/Eponim (data obrashcheniya: 05.12.2015).
Akhmanova O.S. Slovar' lingvisticheskikh terminov. M.: Sov. entsiklopediya, 1966. 607 s.
Sukhareva O.V. Konnotativnost' khudozhestvennykh onimov angliyskogo yazyka: Dis. … kand. filol. nauk: 10.02.04. Voronezh: Voronezhskiy gos. un-t, 2014. 273 s.
Kuchesheva I.L. Imena sobstvennye kak terminy v pod'yazyke angliyskoy lingvokul'tury: Dis. … kand. filol. nauk: 10.02.04. Omsk: Omskiy gos. tekhnich. un-t, 2012. 163 s.
Novinskaya N.V. Rol' imen sobstvennykh v formirovanii sovremennoy terminologii // Nauchno-tekhnicheskaya terminologiya. M, 1987. Vyp. 8. S. 10-13.
Mishkevich M.V. Semantika imeni sobstvennogo // Metodika obucheniya inostrannym yazykam. Romanskoe i germanskoe yazykoznanie. Minsk: Izd-vo BGU, 1988. Vyp. 2. S. 110-114.
Kakzanova E.M. Lingvokognitivnye i kul'turologicheskie osobennosti nauchnogo diskursa: na materiale matematicheskikh i meditsinskikh terminov-eponimov: dis. ... doktora filol. nauk: 10.02.21. M., 2011. 379 s.
Zyuzina E.A. Eponimicheskie edinitsy v sostave spetsial'noy aviatsionnoy leksiki: dis. … kand. filol. nauk: 10.02.01. Krasnodar, 2006. 180 s.
Vakhrameeva V.V. Eponimnye terminy v angliyskikh pod'yazykakh nauki i tekhniki: dis. … kand. filol. nauk: 10.02.04. Omsk, 2003. 144 s.
Varnavskaya E.V. Status i funktsionirovanie eponimov v meditsinskoy terminologii ispanskogo yazyka: avtoref. dis. … kand. filol. nauk: 10.02.05. Voronezh, 2009. 24 s.
Alimuradov O.A. Klasternaya teoriya referentsii i semantika imen: kratkie zametki na polyakh // Filologiya i chelovek. 2008. № 1. S. 42-50.
Dubrovskaya O.G. Sub'ektnyy printsip formirovaniya sotsiokul'turnoy spetsifiki diskursa: avtoref. dis. … dokt. filol. nauk: 10.02.19. Tambov, 2015. 34 s.
Slobodchikov V.I., Isaev E.I. Psikhologiya razvitiya cheloveka. Razvitie sub'ektivnoy real'nosti v ontogeneze. Uchebnoe posobie: PSTGU; Moskva; 2013. 241 s.
Alimuradov O.A., Razduev A.V. Terminy-eponimy v russkom i angliyskom pod'yazykakh nanotekhnologiy: strukturno-semanticheskiy i gendernyy aspekty // Vestnik Pyatigorskogo gosudarstvennogo lingvisticheskogo universiteta. 2011. № 2. S. 157-161.
Boldyrev N.N. Antropotsentricheskaya sushchnost' yazyka v ego funktsiyakh, edinitsakh i kategoriyakh // Voprosy kognitivnoy lingvistiki. 2015. № 1 (42). S. 5-12.
Maslova V.A. Vvedenie v kognitivnuyu lingvistiku. Uchebnoe posobie dlya filologov. M.: Flinta: Nauka, 2004. 296 s.
Benvenist E. Obshchaya lingvistika. M.: Progress, 1974. 446 s.
Sorokina E.A. Kognitivnye aspekty leksicheskogo proektirovaniya (k osnovam kognitivnogo terminovedeniya): monografiya. M.: MGOU, 2007. 235 s.
EPHOTOzine. Glossary. URL: https://www.ephotozine.com/glossary/p-15 (data obrashcheniya: 10.12.2015).
Van Dyke Brown. URL: https://en.wikipedia.org/wiki/Van_Dyke_Brown (data obrashcheniya: 10.12.2015).
Glossary of Photographic Terms. The Ansel Adams Gallery. URL: http://www.anseladams.com/ansel-adams-photography/original-photographs-by-ansel-adams/glossary-of-photographic-terms/ (data obrashcheniya: 10.12.2015).
A Glossary of Digital Photography Terms. URL: http://www.bhphotovideo.com/explora/photography/buying-guide/glossary-digital-photography-terms (data obrashcheniya: 01.12.2015).
DIN. URL: https://ru.wikipedia.org/wiki/DIN (data obrashcheniya: 05.12.2015).
A Glossary of Photographic Terms. URL: http://www.mir.com.my/rb/photography/glossary/terms_g_j.htm (data obrashcheniya: 10.12.2015).
ACDSee. URL: https://ru.wikipedia.org/wiki/ACDSee (data obrashcheniya: 05.12.2015).
Photographytips.com. URL: http://www.photographytips.com/page.cfm/2030 (data obrashcheniya: 10.12.2015).
Hurter and Driffield curve. Bol'shoy anglo-russkiy i russko-angliyskiy slovar'. http://dic.academic.ru/dic.nsf/eng_rus/385575/Hurter (data obrashcheniya: 10.12.2015).
Fur'e-spektroskopiya. URL: http://thesaurus.rusnano.com/wiki/article1937 (data obrashcheniya: 05.12.2015).
Lengmyura-Blodzhett, tekhnologiya. URL: http://thesaurus.rusnano.com/wiki/article1797 (data obrashcheniya: 05.12.2015).
Elektronnaya Ozhe-spektroskopiya. URL: http://thesaurus.rusnano.com/wiki/article2003 (data obrashcheniya: 05.12.2015).
Metod BET. URL: http://thesaurus.rusnano.com/wiki/article1155 (data obrashcheniya: 05.12.2015).
Kombinatsionnoe rasseyanie sveta. URL: http://thesaurus.rusnano.com/wiki/article2041 (data obrashcheniya: 05.12.2015).
Tomografiya, rentgenovskaya komp'yuternaya. URL: http://thesaurus.rusnano.com/wiki/article1617 (data obrashcheniya: 05.12.2015).
Slovar' nanotekhnologicheskikh i svyazannykh s nanotekhnologiyami terminov. URL: http://thesaurus.rusnano.com (data obrashcheniya: 10.12.2015).
Chistyakova V.O. Lyubitel'skaya fotografiya kak ob'ekt mikroistoricheskogo analiza // Istoricheskiy zhurnal: nauchnye issledovaniya. - 2014. - 6. - C. 625 - 634. DOI: 10.7256/2222-1972.2014.6.14557.

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ARGUED: Terry N. Grimes, King, Fulghum, Snead, Nixon & Grimes, P.C., Roanoke, Virginia, for Appellant. William Fain Rutherford, Jr., Woods, Rogers & Hazlegrove, Roanoke, Virginia, for Appellee. ON BRIEF: Frank K. Friedman, Todd A. Leeson, Woods, Rogers & Hazlegrove, Roanoke, Virginia, for Appellee.
Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge WILLIAMS and Judge MOTZ joined.
This case requires us to assess the propriety of the district court's jury instructions in an employment discrimination pretext case. Appellant Charles J. Fuller, an African American, brought a discrimination claim under 42 U.S.C. Sec. 1981 and Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e et seq., alleging that Sheriff Kennard L. Phipps' failure to hire him as a correctional officer was based on Fuller's race. Phipps responded that his hiring decision was based solely on nondiscriminatory reasons. The jury returned a verdict for Sheriff Phipps.
On appeal, Fuller challenges the district court's jury instructions, contending that he should have received a different instruction based on Section 107 of the Civil Rights Act of 1991. His challenge fails for two reasons. First, the instruction he seeks is available only in mixed-motive cases; and second, the instruction he received, when judged in its entirety, is acceptable in pretext cases such as this one. Accordingly, we affirm the jury's verdict.
In determining whether the Plaintiff Fuller is entitled to recover any damages, you must decide one issue, whether Fuller has proved by a preponderance of the evidence that his race was the determinative factor in Defendant Phipps not rehiring him.
In other words, for Fuller to recover, he must prove by the preponderance of the evidence that but for the fact that he is black he would have been reappointed by Phipps.
If Phipps chose not to hire Fuller for any other reason, then Fuller cannot recover, and you must find for Phipps.
If, however, you find that race was a determinative factor in Fuller not being hired, you must consider the issue of damages.
Fuller objected to this charge, claiming that he was entitled to an instruction under Section 107 of the Civil Rights Act of 1991, which reads: "an unlawful employment practice is established when the complaining party demonstrates that race ... was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. Sec. 2000e-2(m). The district judge disagreed. In his view, Section 107 was meant to apply only in mixed-motive cases, not in pretext cases such as this one. The jury then returned a verdict for Sheriff Phipps.
Fuller appeals the refusal of the district court to give his requested instruction. We think, however, that the refusal to give a mixed-motive instruction in this typical pretext case was proper.
Employment discrimination law recognizes an important distinction between mixed-motive and pretext cases. Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n. 12, 109 S.Ct. 1775, 1789 n. 12, 104 L.Ed.2d 268 (1989) (plurality opinion); see Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir.1992) ("Intentional discrimination in employment cases fall within one of two categories: 'pretext' cases and 'mixed-motives' cases."), cert. denied, --- U.S. ----, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). The distinction is critical, because plaintiffs enjoy more favorable standards of liability in mixed-motive cases, and this is even more so after the Civil Rights Act of 1991.
Pretext cases represent the typical disparate treatment action. They take their name from the analysis developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and refined in St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In pretext cases, the plaintiff seeks to prove that the defendant's proffered non-racial reason for an adverse employment action was, in reality, a pretext for a racially motivated decision. Once the parties satisfy their relatively modest obligations under the now familiar McDonnell Douglas/ Burdine framework for producing evidence, see Burdine, 450 U.S. at 252-56, 101 S.Ct. at 1093-95, "the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven 'that the defendant intentionally discriminated against [him]' because of his race." Hicks, --- U.S. at ----, 113 S.Ct. at 2749 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093). Throughout, the plaintiff retains the ultimate burden of persuasion. Id. Most discrimination cases are pretext cases and will fall within this traditional McDonnell Douglas/ Burdine framework.
By contrast, if plaintiffs can present sufficiently direct evidence of discrimination, they qualify for the more advantageous standards of liability applicable in mixed-motive cases. Originally, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), established the proper inquiry in mixed-motive cases. Under the Price Waterhouse framework, if a plaintiff satisfied the evidentiary threshold necessary to obtain mixed-motive treatment, he became entitled to a shift in the burden of persuasion: The employer could then avoid liability only by demonstrating that it would have reached the same decision absent any discrimination. Id. at 258, 109 S.Ct. at 1794-95 (plurality opinion); id. at 259-60, 109 S.Ct. at 1795-96 (White, J., concurring); id. at 276, 109 S.Ct. at 1804 (O'Connor, J., concurring).
The Civil Rights Act of 1991 modified the Price Waterhouse scheme, making mixed-motive treatment more favorable to plaintiffs. Under Section 107 of the Act, an employer can no longer avoid liability by proving that it would have made the same decision for nondiscriminatory reasons. Instead, liability now attaches whenever race "was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. Sec. 2000e-2(m).
Thus, employers now violate the Act when race plays an actual role in an employment decision, regardless of other considerations that may independently explain the outcome. See Preston v. Virginia ex rel. New River Community Coll., 31 F.3d 203, 207 (4th Cir.1994). Proof by the employer that it would have reached the same determination without any discriminatory animus does, however, limit the remedies available to the plaintiff.1 See Russell v. Microdyne Corp., 65 F.3d 1229, 1237 (4th Cir.1995).
To earn a mixed-motive instruction in accordance with the standards set forth in Section 107, a plaintiff must satisfy the evidentiary burden necessary to make out a mixed-motive case. This requires "direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion." Price Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1805 (O'Connor, J., concurring); see Wilson v. Firestone Tire & Rubber, 932 F.2d 510, 514 (6th Cir.1991); Jackson v. Harvard Univ., 900 F.2d 464, 467 (1st Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 137, 112 L.Ed.2d 104 (1990). Moreover, "[n]ot all evidence that is probative of discrimination will entitle the plaintiff to a [mixed-motive] charge." Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 181 (2d Cir.1992). Otherwise, any plaintiff who is able to establish a prima facie showing in a pretext case would qualify for a mixed-motive instruction, conflating the two categories of cases and subverting the Supreme Court's efforts to distinguish the two theories. Hook v. Ernst & Young, 28 F.3d 366, 374-75 (3d Cir.1994); Schleiniger v. Des Moines Water Works, 925 F.2d 1100, 1101 (8th Cir.1991) ("Simply because a discriminatory reason might be inferred from a prima facie case does not mean that a mixed motive case exists."). What is required instead is evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision. See Ostrowski, 968 F.2d at 182; Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir.1995); Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir.1993).
Whether a plaintiff has satisfied this evidentiary threshold is a decision for the district court after it has reviewed the evidence.2 Price Waterhouse, 490 U.S. at 247 n. 12, 109 S.Ct. at 1789 n. 12 (plurality opinion); id. at 278-79, 109 S.Ct. at 1805-06 (O'Connor, J., concurring). If so, the plaintiff is entitled to mixed-motive treatment. If not, the plaintiff must prevail under the standards that apply in pretext cases. See Radabaugh, 997 F.2d at 448. Thus, whether a case is a pretext or mixed-motive case ultimately hinges on the strength of the evidence establishing discrimination.3 See Starceski, 54 F.3d at 1097 (concluding that "the distinction between a Price Waterhouse and a McDonnell Douglas/ Burdine case lies in the kind of proof the employee produces on the issue of bias").
Here, Fuller failed to make out a mixed-motive case. Fuller's allegations of discrimination focus on three items of evidence. First, he identifies statistics purporting to show that the Montgomery County Sheriff's Office hires few black employees. Second, he suggests that he was more qualified than the individuals chosen by Sheriff Phipps. Third, he alleges that he was treated differently in the interviewing process, specifically by being asked to think over the consequences of giving up the permanent position he already held in favor of one of the temporary openings available in Phipps' office.
Sheriff Phipps produced substantial evidence disputing each of these allegations, which would itself justify a conclusion that Fuller failed to qualify for a mixed-motive instruction. Moreover, even if believed, Fuller's allegations do not involve the sort of direct evidence that is necessary to establish a mixed-motive case. His statistical evidence does not suffice, because statistical evidence by nature does not merit a mixed-motive charge. Ostrowski, 968 F.2d at 182. The same is true of his evidence concerning his relative qualifications for the position; such evidence is an issue in virtually every discrimination case. Id. Finally, even if Fuller was treated differently in his interview, there is no evidence demonstrating that this was on account of his race--the allegation consequently does not directly reflect a discriminatory attitude. In fact, requesting that Fuller think over the ramifications of accepting a temporary position seems more to demonstrate a concern for Fuller than any discriminatory animus against him. In short, Fuller's evidence is a far cry from the documented prejudice that triggered mixed-motive treatment in Price Waterhouse: statements by persons involved in the decisional process describing the plaintiff as "macho" and as "overcompensat[ing] for being a woman," and urging her to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Price Waterhouse, 490 U.S. at 235, 109 S.Ct. at 1782 (plurality opinion).
The district court was thus right to treat this case as an ordinary pretext case. Fuller has misconstrued the scope of Section 107 when he seeks an instruction under that provision: Section 107 was intended to benefit plaintiffs in mixed-motive cases; it has nothing to say about the analysis in pretext cases such as this one. The Supreme Court has indicated as much, observing that Section 107 "responds to Price Waterhouse ... by setting forth standards applicable in 'mixed motive' cases." Landgraf v. USI Film Products, --- U.S. ----, ---- - ----, 114 S.Ct. 1483, 1489-90, 128 L.Ed.2d 229 (1994). See also Chenault v. U.S. Postal Service, 37 F.3d 535, 536 (9th Cir.1994) (remarking that "Section 107 ... creates a new framework for analyzing mixed-motive discrimination claims"); Washington v. Garrett, 10 F.3d 1421, 1432 n. 15 (9th Cir.1993) (stating that the "Civil Rights Act of 1991 modified ... Price Waterhouse as to when a plaintiff is entitled to relief in a mixed motive case"). Moreover, the language of Section 107 contemplates a mixed-motive setting, specifically referring to situations in which the plaintiff demonstrates that an illicit consideration has influenced the employment decision and in which other factors may also have played a role. See 42 U.S.C. Sec. 2000e-2(m). And the legislative history makes evident that Congress sought to alter the standards of liability in mixed-motive cases. See H.R.Rep. No. 102-40(I), 102d Cong., 1st Sess. 45, 48-49 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 583, 586-87. Consequently, only those plaintiffs who satisfy the evidentiary burden entitling them to mixed-motive treatment can qualify for an instruction under Section 107. Fuller, plainly, is not such a plaintiff.
Fuller also alleges that the jury instructions were insufficient even for a pretext case. We disagree. When evaluated in their entirety, the district court's charges fairly placed before the jury the dispositive question of whether race was a determinative factor in the adverse employment decision. Moreover, the evidence plainly supports the jury's conclusion that Sheriff Phipps' hiring decision was based on factors other than Fuller's race.
"It is not the appellate function to pick myopic fault with trial instructions." Nelson v. Green Ford, Inc., 788 F.2d 205, 209 (4th Cir.1986). Rather, the appropriate inquiry is whether "the charge in its totality sufficiently focused the eye of the jury on the finding it was to make." Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1137 (4th Cir.1988). The district court's instructions here do not run afoul of this standard.
The court's closing instruction to the jury was to determine whether "race was a determinative factor in Fuller not being hired." This charge was appropriate. In Hazen Paper Co. v. Biggins, --- U.S. ----, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), the Supreme Court used very similar language in establishing the proper inquiry in pretext cases, explaining that "a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in [the decisionmaking] process and had a determinative influence on the outcome."4 Id. at ----, 113 S.Ct. at 1706 (emphasis added); see Miller v. CIGNA Corp., 47 F.3d 586, 595-96 (3d Cir.1995) (en banc) (concluding that the Hazen Paper standard represents the governing standard in pretext cases).
Having adequately apprised the jury of the appropriate standard, the instructions need not have gone further. Simple instructions are normally to be preferred, in order not to "inject needless complexity and potential confusion where simplicity is far more appropriate." Mullen, 853 F.2d at 1138. Though the district court provided additional instructions here, none of them compel reversal. The court also directed the jury to assess whether Fuller had established that "but for the fact that he is black he would have been reappointed by Phipps." This charge essentially restates in different language the court's unobjectionable "a determinative factor" instruction. See Miller, 47 F.3d at 595-96 (equating a "but for" standard with Hazen Paper 's "a determinative influence" instruction); EEOC v. Clay Printing Co., 955 F.2d 936, 940-41 (4th Cir.1992) (suggesting that a "but for" instruction is synonymous with a charge focusing on "a determining factor"). Although perhaps superfluous here, the "but for" instruction is an accurate one in pretext cases.
The court also directed the jury to determine whether race was "the determinative factor" in Sheriff Phipps' hiring decision, and instructed that Fuller could not recover if "Phipps chose not to hire Fuller for any other reason." When examined in isolation, these charges might be construed to require erroneously that race must have been the sole decisional factor. See Price Waterhouse, 490 U.S. at 241, 109 S.Ct. at 1785-86 (plurality opinion); id. at 259, 109 S.Ct. at 1795 (White, J., concurring); id. at 284, 109 S.Ct. at 1808 (Kennedy, J., dissenting). But these statements should not be considered in artificial isolation, for jury instructions "must be judged in the 'context of the overall charge,' " Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 420, 105 S.Ct. 2743, 2755, 86 L.Ed.2d 321 (1985) (citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)), and should be evaluated in their entirety. Spartanburg County Sch. Dist. Seven v. National Gypsum Co., 805 F.2d 1148, 1150 (4th Cir.1986). When viewed as a whole, the district judge's instructions do not rise to the level of reversible error--they plainly put before the jury the appropriate standards of liability in a pretext case. See Smith v. Great American Restaurants, Inc., 969 F.2d 430, 436-37 (7th Cir.1992) (upholding jury instructions in age discrimination case where language which seemed erroneous in isolation was sandwiched between appropriate charges).
Here the evidence supports the view that any instructional error was harmless, see Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1296 (4th Cir.1995), and that Fuller's race had nothing to do with Sheriff Phipps' hiring decision. Phipps' overriding concern was to avoid filling temporary openings with individuals who risked relinquishing permanent positions they held elsewhere. There was testimony that all the hired applicants received warnings about the temporary nature of the vacancies. Moreover, none of the three individuals chosen by Sheriff Phipps faced the danger of losing a full-time permanent position--two of the three were unemployed at the time, and the third was working for his father in a position to which he could easily return. Fuller, on the other hand, held a permanent position in the Roanoke County Sheriff's Office, a factor which was of considerable concern to Sheriff Phipps.
The evidence also supports other nondiscriminatory rationales for Sheriff Phipps' decision not to hire Fuller. Fuller had twice before resigned from employment at the Montgomery County Sheriff's Office after relatively short stints, calling into question his commitment to the department. Also, Fuller had on one occasion used abusive language in lodging a noise complaint with the Sheriff's Office, causing Sheriff Phipps to doubt Fuller's sense of judgment.
Phipps' interactions with Fuller also manifest the lack of any discriminatory animus. Soon after Sheriff Phipps was elected in November, 1991, Fuller contacted Phipps to express an interest in working in the Montgomery County Sheriff's Office, and continued to communicate with Phipps throughout 1992. Phipps advised Fuller to stay in touch, and that he would inform Fuller of any opening as soon as it became available. In December, 1991, Fuller visited Phipps at his home, and the two of them had what both individuals characterize as a cordial conversation, during which Phipps reiterated that he would contact Fuller when an opening arose. When the three temporary positions became available in late 1992, Fuller was the first person notified by Sheriff Phipps, and Phipps promptly offered Fuller an interview. Throughout, Sheriff Phipps seems to have treated Fuller without regard to his race.
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).

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Missouri statutes require abortions after 12 weeks of pregnancy to be performed in a hospital ( 188.025); require a pathology report for each abortion performed ( 188.047); require the presence of a second physician during abortions performed after viability ( 188.030.3); and require minors to secure parental consent or consent from the Juvenile Court for an abortion ( 188.028). In an action challenging the constitutionality of these provisions, the District Court invalidated all provisions except 188.047. The Court of Appeals reversed as to 188.028 and 188.047 but affirmed as to 188.030.3 and 188.025.
Section 188.025 is unconstitutional, but 188.047, 188.030.3, and 188.028 are constitutional.
JUSTICE POWELL delivered the opinion of the Court with respect to Parts I and II, concluding that the second-trimester hospitalization requirement of 188.025 "unreasonably infringes upon a woman's constitutional right to obtain an abortion." Akron v. Akron Center of Reproductive Health, Inc., ante, at 439. Pp. 481-482.
1. The second-physician requirement of 188.030.3 is constitutional as reasonably furthering the State's compelling interest in protecting the lives of viable fetuses. Pp. 482-486.
3. Section 188.028 is constitutional. A State's interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial. And as interpreted by the Court of Appeals to mean that the Juvenile Court cannot deny a minor's application for consent to an abortion "for good cause" unless the court first finds that the minor was not mature enough to make her own decision, 188.028 provides a judicial alternative that is consistent with established legal standards. See Akron v. Akron Center for Reproductive Health, Inc., ante, at 439-440. Pp. 490-493.
1. The second-physician requirement of 188.030.3 is constitutional because the State has a compelling interest, extant throughout pregnancy, in protecting and preserving fetal life. P. 505.
2. The pathology-report requirement of 188.047 is constitutional because it imposes no undue burden on the limited right to undergo an abortion, and its validity is not contingent on the trimester of pregnancy in which it is imposed. P. 505.
3. Assuming, arguendo, that the State cannot impose a parental veto on a minor's decision to undergo an abortion, the parental consent provision of 188.028.2 is constitutional because it imposes no undue burden on any right that a minor may have to undergo an abortion. P. 505.
POWELL, J., announced the judgment of the Court in Part VI and delivered the opinion of the Court with respect to Parts I and II, in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Parts III, IV, and V, in which BURGER, C. J., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 494. O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which WHITE and REHNQUIST, JJ., joined, post, p. 505.
[ Footnote * ] Together with No. 81-1623, Ashcroft, Attorney General of Missouri, et al. v. Planned Parenthood Association of Kansas City, Missouri, Inc., et al., also on certiorari to the same court.
Frank Susman argued the cause and filed briefs for petitioners in No. 81-1255 and respondents in No. 81-1623.
Fn [462 U.S. 476, 477] Dennis J. Horan, Victor G. Rosenblum, Patrick A. Trueman, and Thomas J. Marzen filed a brief for Americans United for Life as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Sylvia A. Law, Nadine Taub, and Ellen J. Winner for the Committee for Abortion Rights [462 U.S. 476, 478] and Against Sterilization Abuse et al.; and by James Bopp, Jr., for the National Right to Life Committee, Inc.
These cases, like City of Akron v. Akron Center for Reproductive Health, Inc., ante, p. 416, and Simopoulos v. Virginia, post, p. 506, present questions as to the validity of state statutes or local ordinances regulating the performance of abortions.
After hearing testimony from a number of expert witnesses, the District Court invalidated all of these sections except the pathology requirement. 483 F. Supp. 679, 699-701 (1980). 5 The Court of Appeals for the Eighth Circuit [462 U.S. 476, 481] reversed the District Court's judgment with respect to 188.028, thereby upholding the requirement that a minor secure parental or judicial consent to an abortion. It also held that the District Court erred in sustaining 188.047, the pathology requirement. The District Court's judgment with respect to the second-physician requirement was affirmed, and the case was remanded for further proceedings and findings relating to the second-trimester hospitalization requirement. 655 F.2d 848, 872-873 (1981). On remand, the District Court adhered to its holding that the second-trimester hospitalization requirement was unconstitutional. The Court of Appeals affirmed this judgment. 664 F.2d 687, 691 (1981). We granted certiorari. 456 U.S. 988 (1982).
The Court today in City of Akron, ante, at 426-431, has stated fully the principles that govern judicial review of state statutes regulating abortions, and these need not be repeated here. With these principles in mind, we turn to the statutes at issue.
In City of Akron, we invalidated a city ordinance requiring physicians to perform all second-trimester abortions at general or special hospitals accredited by the Joint Commission on Accreditation of Hospitals (JCAH) or by the American Osteopathic Association. Ante, at 431-432. Missouri's hospitalization requirements are similar to those enacted by Akron, as all second-trimester abortions must be performed in general, acute-care facilities. 6 For the reasons stated in City of [462 U.S. 476, 482] Akron, we held that such a requirement "unreasonably infringes upon a woman's constitutional right to obtain an abortion." Ante, at 439. For the same reasons, we affirm the Court of Appeals' judgment that 188.025 is unconstitutional.
We turn now to the State's second-physician requirement. In Roe v. Wade, 410 U.S. 113 (1973), the Court recognized that the State has a compelling interest in the life of a viable fetus: "[T]he State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id., at 164-165. See Colautti v. Franklin, 439 U.S. 379, 386 -387 (1979); Beal v. Doe, 432 U.S. 438, 445 -446 (1977). Several of the Missouri statutes undertake such regulation. Postviability abortions are proscribed except when necessary to preserve the life or the health of the woman. Mo. Rev. Stat. 188.030.1 (Supp. 1982). The [462 U.S. 476, 483] State also forbids the use of abortion procedures fatal to the viable fetus unless alternative procedures pose a greater risk to the health of the woman. 188.030.2.
The statutory provision at issue in this case requires the attendance of a second physician at the abortion of a viable fetus. 188.030.3. This section requires that the second physician "take all reasonable steps in keeping with good medical practice . . . to preserve the life and health of the viable unborn child; provided that it does not pose an increased risk to the life or health of the woman." See n. 3, supra. It also provides that the second physician "shall take control of and provide immediate medical care for a child born as a result of the abortion."
The lower courts invalidated 188.030.3. 7 The plaintiffs, respondents here on this issue, urge affirmance on the [462 U.S. 476, 484] grounds that the second-physician requirement distorts the traditional doctor-patient relationship, and is both impractical and costly. They note that Missouri does not require two [462 U.S. 476, 485] physicians in attendance for any other medical or surgical procedure, including childbirth or delivery of a premature infant.
The first physician's primary concern will be the life and health of the woman. Many third-trimester abortions in Missouri will be emergency operations, 8 as the State permits these late abortions only when they are necessary to preserve the life or the health of the woman. It is not unreasonable for the State to assume that during the operation the first physician's attention and skills will be directed to preserving the woman's health, and not to protecting the actual life of those fetuses who survive the abortion procedure. Viable fetuses will be in immediate and grave danger because of their premature birth. A second physician, in situations where Missouri permits third-trimester abortions, may be of assistance to the woman's physician in preserving the health and life of the child.
By giving immediate medical attention to a fetus that is delivered alive, the second physician will assure that the State's interests are protected more fully than the first physician alone would be able to do. And given the compelling interest that the State has in preserving life, we cannot say that the Missouri requirement of a second physician in those unusual [462 U.S. 476, 486] circumstances where Missouri permits a third-trimester abortion is unconstitutional. Preserving the life of a viable fetus that is aborted may not often be possible, 9 but the State legitimately may choose to provide safeguards for the comparatively few instances of live birth that occur. We believe the second-physician requirement reasonably furthers the State's compelling interest in protecting the lives of viable fetuses, and we reverse the judgment of the Court of Appeals holding that 188.030.3 is unconstitutional.
In regulating hospital services within the State, Missouri requires that "[a]ll tissue surgically removed with the exception of such tissue as tonsils, adenoids, hernial sacs and prepuces, shall be examined by a pathologist, either on the premises or by arrangement outside of the hospital." 13 Mo. Admin. Code 50-20.030(3)(A)7 (1977). With respect to abortions, whether performed in hospitals or in some other facility, 188.047 requires the pathologist to "file a copy of the tissue report with the state division of health . . . ." See n. 2, supra. The pathologist also is required to "provide a copy of the report to the abortion facility or hospital in which the abortion was performed or induced." Thus, Missouri appears to require that tissue following abortions, as well as from almost all other surgery performed in hospitals, must be submitted to a pathologist, not merely examined by the performing doctor. The narrow question before us is whether the State lawfully also may require the tissue removed following [462 U.S. 476, 487] abortions performed in clinics as well as in hospitals to be submitted to a pathologist.
On its face and in effect, 188.047 is reasonably related to generally accepted medical standards and "further[s] important health-related state concerns." City of Akron, ante, at 430. As the Court of Appeals recognized, pathology examinations are clearly "useful and even necessary in some cases," because "abnormalities in the tissue may warn of serious, possibly fatal disorders." 655 F.2d, at 870. 10 As a rule, it is accepted medical practice to submit all tissue to the examination of a pathologist. 11 This is particularly important following abortion, because questions remain as to the long-range [462 U.S. 476, 488] complications and their effect on subsequent pregnancies. See App. 72-73 (testimony of Dr. Willard Cates, Jr.); Levin, Schoenbaum, Monson, Stubblefield, & Ryan, Association of Induced Abortion with Subsequent Pregnancy Loss, 243 J. A. M. A. 2495, 2499 (1980). Recorded pathology reports, in concert with abortion complication reports, provide a statistical basis for studying those complications. Cf. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 81 (1976).
In weighing the balance between protection of a woman's health and the comparatively small additional cost of a pathologist's examination, we cannot say that the Constitution requires that a State subordinate its interest in health to minimize to this extent the cost of abortions. Even in the early weeks of pregnancy, "[c]ertain regulations that have no significant impact on the woman's exercise of her right [to [462 U.S. 476, 490] decide to have an abortion] may be permissible where justified by important state health objectives." City of Akron, ante, at 430. See Danforth, supra, at 80-81. We think the cost of a tissue examination does not significantly burden a pregnant woman's abortion decision. The estimated cost of compliance for plaintiff Reproductive Health Services was $19.40 per abortion performed, 483 F. Supp., at 700, n. 48, and in light of the substantial benefits that a pathologist's examination can have, this small cost clearly is justified. In Danforth, this Court unanimously upheld Missouri's record-keeping requirement as "useful to the State's interest in protecting the health of its female citizens, and [as] a resource that is relevant to decisions involving medical experience and judgment," 428 U.S., at 81 . 14 We view the requirement for a pathology report as comparable and as a relatively insignificant burden. Accordingly, we reverse the judgment of the Court of Appeals on this issue.
On its face, 188.028.2(4) authorizes Juvenile Courts 20 to choose among any of the alternatives outlined in the section. [462 U.S. 476, 493] The Court of Appeals concluded that a denial of the petition permitted in subsection (c) "would initially require the court to find that the minor was not emancipated and was not mature enough to make her own decision and that an abortion was not in her best interests." 655 F.2d, at 858. Plaintiffs contend that this interpretation is unreasonable. We do not agree.
The judgment of the Court of Appeals, insofar as it invalidated Missouri's second-trimester hospitalization requirement and upheld the State's parental- and judicial-consent provision, is affirmed. The judgment invalidating the requirement of a pathology report for all abortions and the requirement that a second physician attend the abortion of any viable fetus is reversed. We vacate the judgment upholding an award of attorney's fees for all hours expended by plaintiffs' attorneys and remand for proceedings consistent with Hensley v. Eckerhart, 461 U.S. 424 (1983).
[ Footnote 1 ] Missouri Rev. Stat. 188.025 (Supp. 1982) provides: "Every abortion performed subsequent to the first twelve weeks of pregnancy shall be performed in a hospital."
"A representative sample of tissue removed at the time of abortion shall be submitted to a board eligible or certified pathologist, who shall file a [462 U.S. 476, 479] copy of the tissue report with the state division of health, and who shall provide a copy of the report to the abortion facility or hospital in which the abortion was performed or induced and the pathologist's report shall be made a part of the patient's permanent record."
"(4) The minor has been granted consent to the abortion by court order, and the court has given its informed written consent in accordance with subsection 2 of this section, and the minor is having the abortion willingly, in compliance with subsection 3 of this section.
"3. If a minor desires an abortion, then she shall be orally informed of and, if possible, sign the written consent required by section 188.039 in the same manner as an adult person. No abortion shall be performed on any minor against her will, except that an abortion may be performed against the will of a minor pursuant to a court described in subdivision (4) of subsection 1 of this section that the abortion is necessary to preserve the life of the minor."
[ Footnote 5 ] The District Court also awarded attorney's fees for all hours claimed by the plaintiffs' attorneys. The Court of Appeals affirmed this allocation of [462 U.S. 476, 481] fees. See 655 F.2d 848, 872 (CA8 1981). The petition for certiorari raises the issue whether an award of attorney's fees, made pursuant to 42 U.S.C. 1988 (1976 ed., Supp. V), should be proportioned to reflect the extent to which plaintiffs prevailed.
"`Hospital' means a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment or care for not less than twenty-four hours in any week of three or more nonrelated individuals suffering from illness, disease, injury, deformity or other abnormal physical conditions; or a place devoted primarily to provide for not less than twenty-four hours in any week medical . . . care for three or more nonrelated individuals. . . ."
Cf. Mo. Rev. Stat. 197.200(1) (1978) (defining "ambulatory surgical center" to include facilities "with an organized medical staff of physicians" and "with continuous physician services and registered professional nursing services whenever a patient is in the facility"); 13 Mo. Admin. Code 50-30.010(1)(A) (1977) (same). The regulations for the Department of Social Services establish standards for the construction, physical facilities, and administration of hospitals. 50-20.010 to 50-20.030. These are not unlike those set by JCAH. See City of Akron, ante, at 432, and n. 16.
[ Footnote 7 ] The courts below found, and JUSTICE BLACKMUN'S partial dissenting opinion agrees, post, at 499-500, that there is no possible justification for a second-physician requirement whenever D&E is used because no viable fetus can survive a D&E procedure. 483 F. Supp., at 694; 655 F.2d, at 865. Accordingly, for them, 188.030.3 is overbroad. This reasoning rests on two assumptions. First, a fetus cannot survive a D&E abortion, and second, D&E is the method of choice in the third trimester. There is general agreement as to the first proposition, but not as to the second. Indeed, almost all of the authorities disagree with JUSTICE BLACKMUN'S critical assumption, and as the Court of Appeals noted, the choice of this procedure after viability is subject to the requirements of 188.030.2. See id., at 865, and n. 28. Nevertheless, the courts below, in conclusory language, found that D&E is the "method of choice even after viability is possible." Id., at 865. No scholarly writing supporting this view is cited by those courts or by the partial dissent. Reliance apparently is placed solely on the testimony of Dr. Robert Crist, a physician from Kansas, to whom the District Court referred in a footnote. 483 F. Supp., at 694, n. 25. This testimony provides slim support for this holding. Dr. Crist's testimony, if nothing else, is remarkable in its candor. He is a member of the National Abortion Federation, "an organization of abortion providers and people interested in the pro-choice movement." 3 Record 415-416. He supported the use of D&E on 28-week pregnancies, well into the third trimester. In some circumstances, he considered it a better procedure than other methods. See id., at 427-428. His disinterest in protecting fetal life is evidenced by his [462 U.S. 476, 484] agreement "that the abortion patient has a right not only to be rid of the growth, called a fetus in her body, but also has a right to a dead fetus." Id., at 431. He also agreed that he "[n]ever ha[s] any intention of trying to protect the fetus, if it can be saved," ibid., and finally that "as a general principle" "[t]here should not be a live fetus," id., at 435. Moreover, contrary to every other view, he thought a fetus could survive a D&E abortion. Id., at 433-434. None of the other physicians who testified at the trial, those called both by the plaintiffs and defendants, considered that any use of D&E after viability was indicated. See 2 Record 21 (limiting use of D&E to under 18 weeks); 3 Record 381, 410-413 (Dr. Robert Kretzschmar) (D&E up to 17 weeks; would never perform D&E after 26 weeks); 5 Record 787 (almost "inconceivable" to use D&E after viability); 7 Record 52 (D&E safest up to 18 weeks); id., at 110 (doctor not performing D&E past 20 weeks); id., at 111 (risks of doing outpatient D&E equivalent to childbirth at 24 weeks). See also 8 Record 33, 78-81 (deposition of Dr. Willard Cates) (16 weeks latest D&E performed). Apparently Dr. Crist performed abortions only in Kansas, 3 Record 334, 368, 428, a State having no statutes comparable to 188.030.1 and 188.030.2. It is not clear whether he was operating under or familiar with the limitations imposed by Missouri law. Nor did he explain the circumstances when there were "contraindications" against the use of any of the procedures that could preserve viability, or whether his conclusory opinion was limited to emergency situations. Indeed, there is no record evidence that D&E ever will be the method that poses the least risk to the woman in those rare situations where there are compelling medical reasons for performing an abortion after viability. If there were such instances, they hardly would justify invalidating 188.030.3.
In addition to citing Dr. Crist in its footnote, the District Court cited - with no elaboration - Dr. Schmidt. His testimony, reflecting no agreement with Dr. Crist, is enlightening. Although he conceded that the attendance of a second physician for a D&E abortion on a viable fetus was not necessary, he considered the point mostly theoretical, because he "simply [did] not believe that the question of viability comes up when D&E is an elected method of abortion." 5 Record 836. When reminded of Dr. Crist's earlier testimony, he conceded the remote possibility of third-trimester D&E abortions, but stated: "I personally cannot conceive that as a significant practical point. It may be important legally, but [not] from a medical standpoint . . . ." Ibid. Given that Dr. Crist's discordant testimony [462 U.S. 476, 485] is wholly unsupported, the State's compelling interest in protecting a viable fetus justifies the second-physician requirement even though there may be the rare case when a physician may think honestly that D&E is required for the mother's health. Legislation need not accommodate every conceivable contingency.
[ Footnote 8 ] There is no clearly expressed exception on the face of the statute for the performance of an abortion of a viable fetus without the second physician in attendance. There may be emergency situations where, for example, the woman's health may be endangered by delay. Section 188.030.3 is qualified, at least in part, by the phrase "provided that it does not pose an increased risk to the life or health of the woman." This clause reasonably could be construed to apply to such a situation. Cf. H. L. v. Matheson, 450 U.S. 398, 407 , n. 14 (1981) (rejecting argument that Utah statute might apply to individuals with emergency health care needs).
[ Footnote 9 ] See American College of Obstetricians and Gynecologists (ACOG) Technical Bulletin No. 56, p. 4 (Dec. 1979) (as high as 7% live-birth rate for intrauterine instillation of uterotonic agents); Stroh & Hinman, Reported Live Births Following Induced Abortion: Two and One-Half Years' Experience in Upstate New York, 126 Am. J. Obstet. Gynecol. 83, 83-84 (1976) (26 live births following saline induced-abortions; 9 following hysterotomy; 1 following oxtyocin-induced abortion) (1 survival out of 38 live births); 5 Record 728 (50-62% mortality rate for fetuses 26 and 27 weeks); id., at 729 (25-92% mortality rate for fetuses 28 and 29 weeks); id., at 837 (50% mortality rate at 34 weeks).
[ Footnote 10 ] A pathological examination is designed to assist in the detection of fatal ectopic pregnancies, hydatidiform moles or other precancerous growths, and a variety of other problems that can be discovered only through a pathological examination. The general medical utility of pathological examinations is clear. See, e. g., ACOG, Standards for Obstetric-Gynecologic Services 52 (5th ed. 1982) (1982 ACOG Standards); National Abortion Federation (NAF) Standards 6 (1981) (compliance with standards obligatory for NAF member facilities to remain in good standing); Brief for American Public Health Association as Amicus Curiae, O. T. 1982, Nos. 81-185, 81-746, 81-1172, p. 29, n. 6 (supporting the NAF standards for nonhospital abortion facilities as constituting "minimum standards").
[ Footnote 11 ] ACOG's standards at the time of the District Court's trial recommended that a "tissue or operative review committee" should examine "all tissue removed at obstetric-gynecologic operations." ACOG, Standards for Obstetric-Gynecologic Services 13 (4th ed. 1974). The current ACOG Standards also state as a general rule that, for all surgical services performed on an ambulatory basis, "[t]issue removed should be submitted to a pathologist for examination." 1982 ACOG Standards, at 52. JUSTICE BLACKMUN'S partial dissent, however, relies on the recent modification of these Standards as they apply to abortions. ACOG now provides an "exception to the practice" of mandatory examination by a pathologist and makes such examination for abortion tissue permissive. Ibid. Not surprisingly, this change in policy was controversial within the College. See 5 Record 799-800. ACOG found that "[n]o consensus exists regarding routine microscopic examination of aspirated tissue in every case," though it recognized - on the basis of inquiries made in 29 institutions - that in a majority of them a microscopic examination is performed in all cases. ACOG, Report of Committee on Gynecologic Practice, Item #6.2.1 (June 27-28, 1980).
[ Footnote 12 ] The professional views that the plaintiffs find to support their position do not disclose whether consideration was given to the fact that not all abortion clinics, particularly inadequately regulated clinics, conform to ethical or generally accepted medical standards. See Bellotti v. Baird, 443 U.S. 622, 641 , n. 21 (1979) (Bellotti II) (minors may resort to "incompetent or unethical" abortion clinics); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 91 , n. 2 (1976) (Stewart, J., concurring). The Sun-Times of Chicago, in a series of special reports, disclosed widespread questionable practices in abortion clinics in Chicago, including the failure to obtain proper pathology reports. See The Abortion Profiteers, Chicago Sun-Times 25-26 (Special Reprint 1978). It is clear, therefore, that a State reasonably could conclude that a pathology requirement is necessary in abortion clinics as well as in general hospitals.
In suggesting that we make from a "comfortable perspective" the judgment that a State constitutionally can require the additional cost of a pathology examination, JUSTICE BLACKMUN'S partial dissent suggests that we [462 U.S. 476, 489] disregard the interests of the "woman on welfare or the unemployed teenager." Post, at 498. But these women may be those most likely to seek the least expensive clinic available. As the standards of medical practice in such clinics may not be the highest, a State may conclude reasonably that a pathologist's examination of tissue is particularly important for their protection.
[ Footnote 13 ] JUSTICE BLACKMUN'S partial dissent appears to suggest that 188.047 is constitutionally infirm because it does not require microscopic examination, post, at 496-497, but that misses the point of the regulation. The need is for someone other than the performing clinic to make an independent medical judgment on the tissue. See n. 12, supra; 5 Record 750 (Dr. Pierre Keitges, a pathologist). It is reasonable for the State to assume that an independent pathologist is more likely to perform a microscopic examination than the performing doctor. See H. Cove, Surgical Pathology of the Endometrium 28 (1981) ("To the pathologist, abortions of any sort are evaluated grossly and microscopically for the primary purpose of establishing a diagnosis of intrauterine pregnancy") (emphasis added).
[ Footnote 14 ] The Danforth Court also noted that "[t]he added requirements for confidentiality, with the sole exception for public health officers, and for retention for seven years, a period not unreasonable in length, assist and persuade us in our determination of the constitutional limits." 428 U.S., at 81 . Missouri extends the identical safeguards found reassuring in Danforth to the pathology reports at issue here. See Mo. Rev. Stat. 188.055.2, 188.060 (Supp. 1982).
[ Footnote 15 ] The dissenters apparently believe that the issue here is an open one, and adhere to the views they expressed in Bellotti II. Post, at 503-504. But those views have never been adopted by a majority of this Court, while a majority have expressed quite differing views. See H. L. v. Matheson, 450 U.S. 398 (1981); Bellotti II (plurality opinion); 443 U.S., at 656 -657 (WHITE, J., dissenting).
[ Footnote 17 ] Cf. H. L. v. Matheson, supra, at 406-407, and n. 14, 411 (upholding a parental notification requirement but not extending the holding to mature or emancipated minors or to immature minors showing such notification detrimental to their best interests). The lower courts found that 188.028's notice requirement was unconstitutional. 655 F.2d, at 873; 483 F. Supp., at 701. The State has not sought review of that judgment here. Thus, in the posture in which it appears before this Court for review, 188.028 contains no requirement for parental notification.
[ Footnote 18 ] The Missouri statute also exempts "emancipated" women under the age of 18 both from the requirement of parental consent and from the alternative requirement of a judicial proceeding. Plaintiffs argue that the word "emancipated" in this context is void for vagueness, but we disagree. Cf. H. L. v. Matheson, supra, at 407 (using word to describe a minor). Although the question whether a minor is emancipated turns upon the facts and circumstances of each individual case, the Missouri courts have adopted general rules to guide that determination, and the term is one of general usage and understanding in the Missouri common law. See Black v. Cole, 626 S. W. 2d 397, 398 (Mo. App. 1981) (quoting 67 C. J. S., Parent and Child 86, p. 811 (1950)); In re Marriage of Heddy, 535 S. W. 2d 276, 279 (Mo. App. 1976) (same); Wurth v. Wurth, 313 S. W. 2d 161, 164 (Mo. App. 1958) (same), rev'd on other grounds, 322 S. W. 2d 745 (Mo. 1959).
[ Footnote 19 ] See n. 4, supra. This Court in Danforth held unconstitutional Missouri's parental-consent requirement for all unmarried minors under the age of 18. 428 U.S., at 75 . In response to our decision, Missouri enacted the section challenged here. This new statute became effective shortly before our decision in Bellotti II.
[ Footnote 20 ] We have indicated in prior opinions that a minor should have access to an "independent decisionmaker." H. L. v. Matheson, supra, at 420 (POWELL, J., concurring). Missouri has provided for a judicial decisionmaker. We therefore need not consider whether a qualified and independent nonjudicial decisionmaker would be appropriate. Cf. Bellotti II, 443 U.S., at 643 , n. 22.
[ Footnote 21 ] Plaintiffs also argue that, in light of the ambiguity of 188.028.2(4), as evidenced by the differing interpretations placed upon it, the appropriate course of judicial restraint is abstention. This Court has found such an approach appropriate. See Bellotti v. Baird, 428 U.S. 132, 146 -147 (1976) (Bellotti I). Plaintiffs did not, however, argue in the Court of Appeals that the court should abstain, and Missouri has no certification procedure whereby this Court can refer questions of state statutory construction to the State Supreme Court. See 655 F.2d, at 861, n. 20; 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4248, p. 525, n. 29 (1978 and Supp. 1982). Such a procedure "greatly simplifie[d]" our [462 U.S. 476, 494] analysis in Bellotti I, supra, at 151. Moreover, where, as here, a statute is susceptible to a fair construction that obviates the need to have the state courts render the saving construction, there is no reason for federal courts to abstain.
The Court's decision today in Akron v. Akron Center for Reproductive Health, Inc., ante, p. 416, invalidates the city of Akron's hospitalization requirement and a host of other provisions that infringe on a woman's decision to terminate her pregnancy through abortion. I agree that Missouri's hospitalization requirement is invalid under the Akron analysis, and I join Parts I and II of JUSTICE POWELL'S opinion in the present cases. I do not agree, however, that the remaining Missouri statutes challenged in these cases satisfy the constitutional standards set forth in Akron and the Court's prior decisions.
Missouri law provides that whenever an abortion is performed, a tissue sample must be submitted to a "board eligible [462 U.S. 476, 495] or certified pathologist" for a report. Mo. Rev. Stat. 188.047 (Supp. 1982). This requirement applies to first-trimester abortions as well as to those performed later in pregnancy. Our past decisions establish that the performance of abortions during the first trimester must be left "`free of interference by the State.'" Akron, ante, at 430, quoting Roe v. Wade, 410 U.S. 113, 163 (1973). As we have noted in Akron, this does not mean that every regulation touching upon first-trimester abortions is constitutionally impermissible. But to pass constitutional muster, regulations affecting first-trimester abortions must "have no significant impact on the woman's exercise of her right" and must be "justified by important state health objectives." Akron, ante, at 430; see ante, at 489-490.
"In the situation of elective termination of pregnancy, the attending physician should record a description of the gross products. Unless definite embryonic or fetal parts can be identified, the products of elective interruptions [462 U.S. 476, 496] of pregnancy must be submitted to a pathologist for gross and microscopic examination.
"All tissue must be examined grossly at the time of the abortion procedure by a physician or trained assistant and the results recorded in the chart. In the absence of visible fetal parts or placenta upon gross examination, obtained tissue may be examined under a low power microscope for the detection of villi. If this examination is inconclusive, the tissue should be sent to the nearest suitable pathology laboratory for microscopic examination." National Abortion Federation Standards 6 (1981) (emphasis deleted).
As the Court of Appeals pointed out, there was expert testimony at trial that a nonpathologist physician is as capable of performing an adequate gross examination as is a pathologist, and that the "abnormalities which are of concern" are [462 U.S. 476, 497] readily detectable by a physician. 655 F.2d 848, 871, n. 37 (CA8 1981); see App. 135. 2 While a pathologist may be better able to perform a microscopic examination, Missouri law does not require a microscopic examination unless "fetal parts or placenta are not identified." 13 Mo. Admin. Code 50-151.030(1) (1981). Thus, the effect of the Missouri statute is to require a pathologist to perform the initial gross examination, which is normally the responsibility of the attending physician and which will often make the pathologist's services unnecessary.
On the record before us, I must conclude that the State has not "met its burden of demonstrating that [the pathologist requirement] further[s] important health-related State concerns." Akron, ante, at 430. 3 There has been no showing that tissue examinations by a pathologist do more to protect health than examinations by a nonpathologist physician. Missouri does not require pathologists' reports for any other surgical procedures performed in clinics, or for minor surgery performed in hospitals. 13 Mo. Admin. Code 50-20.030(3)(A)(7) (1977). Moreover, I cannot agree with JUSTICE POWELL that Missouri's pathologist requirement has "no significant impact" ante, at 489, on a woman's exercise of her right to an abortion. It is undisputed that this requirement may increase the cost of a first-trimester abortion by as much as $40. See 483 F. Supp. 679, 700, n. 48 (WD Mo. 1980). Although this increase may seem insignificant from the Court's comfortable perspective, I cannot say that it is equally insignificant to every woman seeking an abortion. [462 U.S. 476, 498] For the woman on welfare or the unemployed teenager, this additional cost may well put the price of an abortion beyond reach. 4 Cf. Harper v. Virginia Board of Elections, 383 U.S. 663, 668 (1966) ($1.50 poll tax "excludes those unable to pay"); Burns v. Ohio, 360 U.S. 252, 255 , 257 (1959) ($20 docket fee "foreclose[s] access" to appellate review for indigents).
In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 81 (1976), the Court warned that the minor recordkeeping requirements upheld in that case "perhaps approach[ed] impermissible limits." Today in Akron, we have struck down restrictions on first-trimester abortions that "may in some cases add to the cost of providing abortions." Ante, at 447-448; see ante, at 449-451. Missouri's requirement of a pathologist's report unquestionably adds significantly to the cost of providing abortions, and Missouri has not shown that it serves any substantial health-related purpose. Under these circumstances, I would hold that constitutional limits have been exceeded.
In Missouri, an abortion may be performed after viability only if necessary to preserve the life or health of the woman. Mo. Rev. Stat. 188.030.1 (Supp. 1982). When a postviability abortion is performed, Missouri law provides that "there [must be] in attendance a [second] physician . . . who [462 U.S. 476, 499] shall take control of and provide immediate medical care for a child born as a result of the abortion." Mo. Rev. Stat. 188.030.3 (Supp. 1982). The Court recognized in Roe v. Wade, 410 U.S., at 164 -165, that a State's interests in preserving maternal health and protecting the potentiality of human life may justify regulation and even prohibition of postviability abortions, except those necessary to preserve the life and health of the mother. But regulations governing postviability abortions, like those at any other stage of pregnancy, must be "tailored to the recognized state interests." Id., at 165; see H. L. v. Matheson, 450 U.S. 398, 413 (1981) ("statute plainly serves important state interests"); Roe, 410 U.S., at 155 ("legislative enactments must be narrowly drawn to express only the legitimate state interests at stake").
The second-physician requirement is upheld in these cases on the basis that it "reasonably furthers the State's compelling interest in protecting the lives of viable fetuses." Ante, at 486. While I agree that a second physician indeed may aid in preserving the life of a fetus born alive, this type of aid is possible only when the abortion method used is one that may result in a live birth. Although Missouri ordinarily requires a physician performing a postviability abortion to use the abortion method most likely to preserve fetal life, this restriction does not apply when this method "would present a greater risk to the life and health of the woman." Mo. Rev. Stat. 188.030.2 (Supp. 1982).
The District Court found that the dilatation and evacuation (D&E) method of abortion entails no chance of fetal survival, and that it will nevertheless be the method of choice for some women who need postviability abortions. In some cases, in other words, maternal health considerations will preclude the use of procedures that might result in a live birth. 483 [462 U.S. 476, 500] F. Supp., at 694. 5 When a D&E abortion is performed, the second physician can do nothing to further the State's compelling interest in protecting potential life. His presence is superfluous. The second-physician requirement thus is overbroad and "imposes a burden on women in cases where the burden is not justified by any possibility of survival of the fetus." 655 F.2d, at 865-866.
In addition, I would hold that the statute's failure to provide a clear exception for emergency situations renders it unconstitutional. As JUSTICE POWELL recognizes, ante, at 485, n. 8, an emergency may arise in which delay could be dangerous to the life or health of the woman. A second physician may not always be available in such a situation; yet the statute appears to require one. It states, in unqualified terms, that a postviability abortion "shall be performed . . . only when there is in attendance" a second physician who "shall take control of" any child born as a result of the abortion, and it imposes certain duties on "the physician required by this section to be in attendance." Mo. Rev. Stat. 188.030.3 (Supp. 1982) (emphasis added). By requiring the attendance of a second physician even when the resulting delay may be harmful to the health of the pregnant woman, the statute impermissibly fails to make clear "that the woman's life and [462 U.S. 476, 502] health must always prevail over the fetus' life and health when they conflict." Colautti v. Franklin, 439 U.S. 379, 400 (1979).
JUSTICE POWELL attempts to cure this defect by asserting that the final clause of the statute, requiring the two physicians to "take all reasonable steps . . . to preserve the life and health of the viable unborn child; provided that it does not pose an increased risk to the life or health of the woman," could be construed to permit emergency postviability abortions without a second physician. Ante, at 485, n. 8. This construction is contrary to the plain language of the statute; the clause upon which JUSTICE POWELL relies refers to the duties of both physicians during the performance of the abortion, but it in no way suggests that the second physician may be dispensed with.
Missouri law prohibits the performance of an abortion on an unemancipated minor absent parental consent or a court order. Mo. Rev. Stat. 188.028 (Supp. 1982).
Until today, the Court has never upheld "a requirement of a consent substitute, either parental or judicial," ante, at 491. In Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 74 , the Court invalidated a parental-consent requirement on the ground that "the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent." In Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), eight Justices [462 U.S. 476, 504] agreed that a Massachusetts statute permitting a judicial veto of a mature minor's decision to have an abortion was unconstitutional. See id., at 649-650 (opinion of POWELL, J.); id., at 654-656 (opinion of STEVENS, J.). Although four Justices stated in Bellotti II that an appropriately structured judicial-consent requirement would be constitutional, id., at 647-648 (opinion of POWELL, J.), this statement was not necessary to the result of the case and did not command a majority. Four other Justices concluded that any judicial-consent statute would suffer from the same flaw the Court identified in Danforth: it would give a third party an absolute veto over the decision of the physician and his patient. 443 U.S., at 655 -656 (opinion of STEVENS, J.).
"It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties. . . . As a practical matter, I would suppose that the need to commence judicial proceedings in order to obtain a legal abortion would impose a burden at least as great as, and probably greater than, that imposed on the minor child by the need to obtain the consent of the parent. Moreover, once this burden is met, the only standard provided for the judge's decision is the best interest of the minor. That standard provides little real guidance to the judge, and his decision must necessarily reflect personal and societal values and mores whose enforcement upon the minor - particularly when contrary to her own informed and reasonable decision - is fundamentally at odds with privacy interests underlying the constitutional protection afforded to her decision." Ibid. (footnote omitted).
Because Mo. Rev. Stat. 188.028 (Supp. 1982) permits a parental or judicial veto of a minor's decision to obtain an abortion, I would hold it unconstitutional.
[ Footnote 2 ] The District Court made no findings on this point, noting only that some witnesses for the State had testified that "pathology should be done" for every abortion. 483 F. Supp. 679, 700, n. 49 (WD Mo. 1980).
[ Footnote 3 ] JUSTICE POWELL appears to draw support from the facts that "questionable practices" occur at some abortion clinics, while at others "the standards of medical practice . . . may not be the highest." Ante, at 489, n. 12. There is no evidence, however, that such questionable practices occur in Missouri.
[ Footnote 4 ] A $40 pathologist's fee may increase the price of a first-trimester abortion by 20% or more. See 655 F.2d 848, 869, n. 35 (1981) (cost of first-trimester abortion at Reproductive Health Services is $170); F. Jaffe, B. Lindheim, & P. Lee, Abortion Politics: Private Morality and Public Policy 36 (1981) (cost of first-trimester clinic abortion ranges from approximately $185 to $235); Henshaw, Freestanding Abortion Clinics: Services, Structure, Fees, 14 Family Planning Perspectives 248, 255 (1982) (average cost of first-trimester clinic abortion is $190); National Abortion Federation Membership Directory 18-19 (1982/1983) (NAF clinics in Missouri charge $180 to $225 for first-trimester abortion).
[ Footnote 5 ] The District Court relied on the testimony of Doctors Robert Crist and Richard Schmidt. Doctor Crist testified that in some instances abortion methods other than D&E would be "absolutely contraindicated" by the woman's health condition, 3 Record 438-439, giving the example of a recent patient with hemolytic anemia that would have been aggravated by the use of prostaglandins or other labor-inducing abortion methods, id., at 428. Doctor Schmidt testified that "[t]here very well may be" situations in which D&E would be used because other methods were contraindicated. 5 Record 836. Although Doctor Schmidt previously had testified that a postviability D&E abortion was "almost inconceivable," this was in response to a question by the State's attorney regarding whether D&E would be used "[a]bsent the possibility that there is extreme contraindication for the use of prostaglandins or saline, or of hysterotomy." Id., at 787. Any inconsistencies in Doctor Schmidt's testimony apparently were resolved by the District Court in the plaintiffs' favor.
The Court of Appeals upheld the District Court's factual finding that health reasons sometimes would require the use of D&E for postviability abortions. 655 F.2d, at 865. Absent the most exceptional circumstances, we do not review a District Court's factual findings in which the Court of Appeals has concurred. Branti v. Finkel, 445 U.S. 507, 512 , n. 6 (1980).
[ Footnote 6 ] In addition to requiring the physician to select the method most likely to preserve fetal life, so long as it presents no greater risk to the pregnant woman, Missouri requires that the physician "certify in writing the [462 U.S. 476, 501] available method or techniques considered and the reasons for choosing the method or technique employed." Mo. Rev. Stat. 188.030.2 (Supp. 1982). This ensures that the choice of method will be a reasoned one.
[ Footnote 7 ] The State argues that its second-physician requirement is justified even when D&E is used, because "[i]f the statute specifically excepted D&E procedures, abortionists would be encouraged to use it more frequently to avoid the expense of a second physician, to ensure a dead fetus, to prevent the presence of a second professional to observe malpractice or the choice of a questionable procedure from a safety viewpoint, a fetus-destroying procedure, or to avoid their own awakening to concern for the newborn." Brief for Petitioners in No. 81-1623, p. 44. The Court rejected this purported justification for a second physician in Doe v. Bolton, 410 U.S. 179, 199 (1973): "If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice."
[ Footnote 8 ] "Only the [Missouri] courts can supply the requisite construction, since of course `we lack jurisdiction authoritatively to construe state legislation.'" Gooding v. Wilson, 405 U.S. 518, 520 (1972), quoting United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971).
[ Footnote 9 ] A physician who fails to comply with Missouri's second-physician requirement faces criminal penalties and the loss of his license. Mo. Rev. Stat. 188.065, 188.075 (1978 and Supp. 1982).
[ Footnote 10 ] Because I would hold the statute unconstitutional on these grounds, I do not reach the question whether Missouri's second-physician requirement impermissibly interferes with the doctor-patient relationship. I note, however, that Missouri does not require attendance of a second physician at any other medical procedure, including a premature birth. There was testimony at trial that a newborn infant, whether the product of a normal birth or an abortion, ordinarily remains the responsibility of the woman's physician until he turns its care over to another. App. 133; see ACOG, Standards for Obstetric-Gynecologic Services 31 (5th ed., 1982) ("The individual who delivers the baby is responsible for the immediate post-delivery care of the newborn until another person assumes this duty").
For reasons stated in my dissent in Akron v. Akron Center for Reproductive Health, ante, p. 416, I believe that the second-trimester hospitalization requirement imposed by 188.025 does not impose an undue burden on the limited right to undergo an abortion. Assuming, arguendo, that the requirement was an undue burden, it would nevertheless "reasonably relat[e] to the preservation and protection of maternal health." Roe v. Wade, 410 U.S. 113, 163 (1973). I therefore dissent from the Court's judgment that the requirement is unconstitutional.
I agree that the second-physician requirement contained in 188.030.3 is constitutional because the State possesses a compelling interest in protecting and preserving fetal life, but I believe that this state interest is extant throughout pregnancy. I therefore concur in the judgment of the Court.
I agree that the pathology-report requirement imposed by 188.047 is constitutional because it imposes no undue burden on the limited right to undergo an abortion. Because I do not believe that the validity of this requirement is contingent in any way on the trimester of pregnancy in which it is imposed, I concur in the judgment of the Court.
Assuming, arguendo, that the State cannot impose a parental veto on the decision of a minor to undergo an abortion, I agree that the parental-consent provision contained in 188.028 is constitutional. However, I believe that the provision is valid because it imposes no undue burden on any right that a minor may have to undergo an abortion. I concur in the judgment of the Court on this issue.

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