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Published online by Cambridge University Press: 24 February 2021
The immediate impact of Webster v. Reproductive Health Services on the majority of abortions performed in the United States will be marginal. Even if most states enact provisions similar to those approved in Webster, no abortions would be outlawed, and only abortions performed after viability or performed in public hospitals would be directly affected. At one point, Webster had the potential for breaking new constitutional ground on the extent to which states may restrict counseling for abortion in state facilities, and by state employees. However, due to Missouri's failure to appeal the invalidation of some of these provisions, and to the limiting construction given to the provisions that were appealed, these issues were not fully joined before the Supreme Court. Their resolution is postponed to another day.
See J. Noonan, A Private Choice: Abortion in America in the Seventies (1979).
1 109 S. Ct. 3040 (1989).
2 Webster passed on the constitutionality of three provisions of the Missouri abortion statute. The majority affirmed the constitutionality of sections 188.210 and 188.215 of the law, restricting the use of public facilities or public employees in the performance of abortions not necessary to save the life of the mother. The Court denied the plaintiffs claim of a constitutional right of access to public facilities, at their own private expense, for the performance of abortions. Id. at 3050-54; Mo. Rev. Stat. §§ 188.210, 188.215 (1989). A similar result had been reached by the Court in Poelker v. Doe, 432 U.S. 519 (1977), upholding a city ordinance banning the performance of abortions in two municipal hospitals. Analogous holdings can be found in Harris v. McRae, 448 U.S. 297 (1980), Williams v. Zbaraz, 448 U.S. 358 (1980) and Maher v. Roe, 432 U.S. 464 (1977). The Court also upheld the constitutionality of section 188.029 of the statute, requiring that a physician making a mandated determination of viability prior to the performance of any abortion at twenty weeks or more of gestation perform “such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child, and shall enter such findings and determination of viability in the medical record of the mother.” Webster, 109 S. Ct. at 3054-58 (Rehnquist, C.J., plurality opinion); id. at 3060-64 (O'Connor, J., concurring); id. at 3066-67 (Scalia, J., concurring).
The Court refused to pass judgment on the constitutionality of the “preamble” language, finding that the “life of each human being begins at conception,” and that unborn children have protectable legal interests under Missouri law. Id. at 3049-50. The Court also found that the controversy over the statute's prohibition over the use of public funds to counsel or encourage women to undergo an abortion not necessary to preserve life was moot. Id. at 3053.
3 See Mo. Rev. Stat. § 188.205 (prohibiting the expenditure of public funds “for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life“). The Court accepted the state's construction of this provision as being directed not to the conduct or speech of individual state-employed physicians or health-care providers, but solely to those responsible for disbursing state funds. Because the plaintiffs conceded that they would not be directly affected under such an application of the statute, the Court dismissed the action as moot.
As enacted, the Missouri statute also contained prohibitions stating that public employees could not counsel or encourage women to have abortions, except those necessary to preserve life, and that no such counseling or encouragement could take place within state facilities. Mo. Rev. Stat. §§ 188.210 - 188.215 (1989). These provisions were stricken by the Court of Appeals in Reproductive Health Servs. v. Webster, 851 F.2d 1071, 1079 (8th Cir. 1988), a ruling which the state did not appeal. Thus, direct state sanction against abortion counseling by state employees, or by agencies receiving public funds, was not at issue before the Court. See infra note 6 for further discussion of this issue.
4 As noted in the summaries by Pine and Neuborn, this issue may be more squarely presented to the Supreme Court in appeals from three cases challenging regulations governing the conduct of participants in federally-funded family planning programs. See 53 Fed. Reg. 2922-46 (1988) (to be codified as 42 C.F.R. §§ 59.2, .5, .7, .8, .9, .10). In Massachusetts v. Secretary of Health & Human Servs., 873 F.2d 1528 (1st Cir. 1989), vacated and reh'g granted, No. 88-1279 (1st Cir. Aug. 9, 1989), a three-judge panel of the First Circuit affirmed the district court's invalidation of the new regulations, but upon petition for rehearing en banc, the opinion was vacated and rehearing granted. In two other cases, Planned Parenthood F'ed. Of Am. v. Bowen, 687 F. Supp. 540 (D. Colo. 1988) (invalidating Title X regulations) and New York v. Bowen, 690 F. Supp. 1261 (S.D.N.Y. 1988) (upholding regulations), two district courts divided on the issue, and both decisions have been appealed.
5 410 U.S. 113 (1973).
6 See supra note 2 for discussion of this issue.
7 Webster, 109 S. Ct. at 3056.
8 Id. at 3067.
9 Id. at 3063 (O'Connor, J., concurring).
10 Significantly, this aspect of Webster provides the clearest evidence of impact by an amicus brief. In support of her conclusion that the Missouri statute would not require the performance of expensive tests upon fetuses who were clearly not viable, Justice O'Connor cited the brief of an anti-abortion physician's organization. See Brief of American Association of Prolife Obstetricians and Gynecologists, et al, as Amici Curiae, cited at 109 S. Ct. at 3063 (O'Connor, J., concurring). This submission, therefore, had the dual effect of providing support for the Missouri statute, while providing Justice O'Connor a rationale to defer ultimate reconsideration of the trimester standard to another date.
11 462 U.S. 416, 452-75 (1983) (O'Connor, J., dissenting).
12 476 U.S. 747 (1986).
13 462 U.S. 476, 482-86 (1983) (affirming requirement that second physician, responsible for care of child born alive as result of abortion, be present at performance of abortion after viability). In Ashcroft, the U.S. Court of Appeals for the Eighth Circuit had upheld a related provision requiring that the method of abortion after viability not be fatal to the viable fetus, unless alternative procedures pose a greater risk of health to the woman. 655 F.2d at 863-64. The Eighth Circuit's ruling in this regard was not appealed.
14 439 U.S. 379 (1979).
15 476 U.S. 747 (1986).
16 Webster, 109 S. Ct. at 3058.
17 Webster, 109 S. Ct. at 3063 (O'Connor, J., concurring).
18 For a recent judicial application of such findings, see Davis v. Davis, No. E-14496 (Term. Ct. App. Sept. 21, 1989) (Lexis, States library, Tenn. file).
19 See generally Abortion and the Constitution: Reversinc Roe V. Wade through the Courts (D. Horan, E. Grant & P. Cunningham, eds. 1987).
20 Among the amicus briefs undertaking to support specific aspects of Justice Blackmun's opinion that have been subject to most vigorous attack were: Amici Curiae Brief of 167 Distinguished Scientists and Physicians, Including 11 Nobel Laureates (supporting Blackmun's position that beginning of human life cannot be determined on a scientific basis); Brief of 281 American Historians (supporting Blackmun's conclusion that abortion was licit and widely practiced under common law); Brief for a Group of American Law Professors (supporting Blackmun's findings pertaining to the right of privacy) (excerpted for this article by Michelman).
Contrary positions were presented in support of the state by: Brief of Association for Public Justice and Value of Life Committee, Inc. (history); Brief of Certain American State Legislators (history) (excerpted in this article by Linton); Brief of Hon. Christopher H. Smith, et al. (stare decisis and personhood of unborn under fourteenth amendment) (excerpted for this article); Knights of Columbus (humanity of unborn).
21 In re Baby M., 109 N.J. 396, 537 A.2d 1227 (1988).
22 Davis v. Davis, No. E-14496 (Tenn. Ct. App. Sept. 21, 1989) (Lexis, States library, Tenn. file).
23 Webster, 109 S. Ct. at 3061.
24 Roe, 410 U.S. at 166 (“[T]he abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.“).
25 See generally J. Imber, Abortion and the Private Practice of Medicine (1986).
26 Pfeifer, Abandoning Error, in Abortion and the Constitution, supra note 16, at 17.
27 Brief for a Group of American Law Professors as Amicus Curiae in Support of Appellants Webster v. Reproductive Health Servs., 851 F.2d 1071 (8th Cir. 1988) (No. 88-605).
28 Id. at 19 n.32.
29 478 U.S. 186 (1986).
30 Id.
31 109 S. Ct. 2333 (1989).
32 Id. at 2337.
33 Id. at 2345.
34 Id. at 2361-62 (White, J., dissenting).
35 Roe, 410 U.S. at 159.
36 448 U.S. 297 (1980).
37 Id. at 325.
38 388 U.S. 1 (1967).
39 381 U.S. 479 (1965).
40 268 U.S. 510 (1925).
41 We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will. Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today.
Webster, 109 S. Ct. at 3056-66 (Scalia, J., concurring).
42 A. Cox, The Role of the Supreme Court in American Government 113-14 (1973).
43 Vieira, , Roe and Doe: Substantive Due Process and the Right of Abortion, 25 Hastings L.J. 867, 873 (1974)Google Scholar.
44 Roe, 410 U.S. at 136, 141-42.
45 See Brief of Certain American State Legislators, Brief of Association for Public Justice and Value of Life Committee, Inc.; see also Dellapenna, Abortion and the Law: Blackmun 's Distortion of the Historical Record, in Abortion and the Constitution, supra note 19, at 137-58 and sources cited therein.
46 See N.Y. Times, Apr. 27, 1989, at B12-B14 (transcript of oral argument).
47 Dellapenna, supra note 45, at 144-46. “If abortions were rare in early times, then one should ask about the fate of unwanted children. The answer is infanticide.” Id.
48 See Brief of Certain American State Legislators.
49 Dellapenna, supra note 45, at 147.