Abortion and the Constitution (Update 1a)

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ABORTION AND THE CONSTITUTION (Update 1a)

Abortion legislation rarely, if ever, demonstrates concern for the well-being of women. It usually represents the state using coercive measures to persuade women to bear children rather than have abortions. As long as American society treats women and their reproductive capacity with disrespect by not funding prenatal care, postnatal care, paid pregnancy leave, effective and safe forms of birth control, or child care, it is hard to imagine that a legislature that respects the well-being of women could enact restrictions on abortion. Thus, when we read abortion legislation or an abortion decision by the courts, we should ask ourselves whether that legislature or that court could have reached the decision that it reached if it fully respected the well-being of women. Under such a framework, we would have to conclude that the Missouri legislature that enacted the abortion legislation challenged in webster v. reproductive health services (1989) did not respect the well-being of women, especially poor or teenage women. Nevertheless, no member of the Supreme Court in Webster, including the dissenters, demonstrated a real grasp of the significance of the Missouri legislation on the lives and well-being of poor women and teenage women.

In Webster, the Supreme Court was asked to consider the constitutionality of a Missouri statute that contained four provisions arguably restricting a woman's ability to have an abortion. Two provisions received most of the Court's attention: first, a requirement that a physician ascertain whether a fetus is viable prior to performing an abortion on any woman whom he or she has reason to believe is twenty or more weeks pregnant; and, second, a prohibition against using public employees or facilities to perform or assist an abortion not necessary to save the mother's life.

Chief Justice william h. rehnquist wrote the opinion for the Court. His opinion was joined by four other Justices—byron r. white, sandra day o'connor, antonin scalia, and anthony m. kennedy—with respect to the second provision. Rehnquist's conclusion that this part of the statute was constitutional was an extension of the Court's earlier decisions in the Medicaid abortion-funding cases. Rather than apply the more stringent test that had been developed in roe v. wade (1973), Rehnquist applied the more lenient standard developed in harris v. mcrae (1980)—asking whether the state legislature had placed any obstacles in the path of a woman who chooses to terminate her pregnancy. Rehnquist concluded that the state's refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the state had chosen not to operate any public hospitals at all. As in Harris v. McRae, Rehnquist acknowledged that a state was permitted to make a value judgment favoring childbirth over abortion and to implement that judgment in allocating public funds and facilities.

Justice harry blackmun's dissent, which was joined by Justices william j. brennan and thurgood marshall, argued that Missouri's public facility provision could easily be distinguished from Harris v. McRae because of the sweeping scope of Missouri's definition of a public facility. (Justice john paul stevens dissented separately.) Under Missouri's broad definition, any institution that was located on property owned, leased, or controlled by the government was considered to be public. Thus, the essentially private Truman Medical Center, which performed ninety-seven percent of abortions in the state after sixteen weeks of pregnancy, would be prohibited from performing abortions under the state statute. Even under the more lenient test developed by the Court in Harris, Justice Blackmun concluded that the funding provision should be held unconstitutional.

Justice Blackmun's discussion of the public facility provision comes only in a footnote and is not the primary focus of his decision. In order to understand the full impact of this provision on women's lives and health, it is useful to consider the amicus briefs filed on behalf of women of color and teenage women. These briefs noted that poor women and teenage women are more likely than other women to seek abortions at public health facilities because they do not have private physicians. They are also more likely to have second-trimester abortions because they delay having abortions until they save the necessary amount of money or find out how to get an abortion. When Blackmun noted that the health-care provider that performs nearly all of the second-trimester abortions will not be able to do so, he could have observed that poor women and teenagers would be disproportionately unable to procure legal abortions. Given the relationship between teenage pregnancy and the cycle of poverty, the inability to procure an abortion often has dramatic consequences in the life of a poor, teenage woman. Although Justice Blackmun was certainly correct to note that the public facility ban "leaves the pregnant woman with far fewer choices, or, for those too sick or too poor to travel, perhaps no choice at all," it would have been better if he had described the impact of this regulation in the race-, class-, and age-based way in which it is most likely to operate.

Justice Blackmun's discussion of the public facility provision skirted the question whether Harris v. McRae should be overturned. He tried to distinguish Harris from Webster rather than call for its reconsideration. The amicus brief submitted by women of color was not so subtle. They often used exactly the same information that they had provided the Supreme Court in Harris to argue that the well-being of poor women cannot be protected unless the government ensures that legal abortions are available to poor women on the same basis as middle-class women. A chart in an amicus brief submitted by an international women's health organization showed that the United States stands alone in the world in permitting abortion to be lawful but not funding any abortions for poor women unless their very lives are endangered. Although not all countries fund "abortion on demand" for poor women, all countries that make abortion lawful also fund therapeutic abortions for poor women. These comparative data show that the United States stands alone in the world in its disrespect for the lives and well-being of poor women. Unlike other Western countries, the United States fails to fund prenatal care, postnatal care, pregnancy leave, and child care but then tries to tell poor women that it "prefers" childbirth to abortion. The most logical explanation for this position of both the United States government and the state of Missouri is that government officials have not bothered to educate themselves on the impact that funding and public facility restrictions have on the lives of poor women. And, as long as poor women have virtually no political power, it seems unlikely that government officials will focus on their needs.

Both the majority and dissenting opinions in Webster did focus on the first provision of the Missouri statute. Chief Justice Rehnquist's discussion of this provision only received the support of Justices White and Kennedy, but the seperate concurrences of Justices O'Connor and Scalia made a majority for the conclusion that the provision was constitutional. The provision presented both technical and substantive difficulties. Technically, the provision appeared to require physicians to perform viability tests that were contrary to accepted medical practice, such as performing amniocentesis on a fetus that was under twenty-eight weeks old. If that had been the actual meaning of the statute, most of the Justices would have been compelled to find it unconstitutional even under the most lenient standard of review used by courts—the rational basis test—because the statute would have rationally served no public purpose. In order to avoid that conclusion, Rhenquist offered a somewhat strained interpretation of the statute so that a physician would have the discretion to perform only tests that were medically appropriate.

Having overcome this technical hurdle, Rehnquist then turned to the substantive difficulties posed by the provision. Under the Court's prior doctrine, as articulated in Roe v. Wade, a state was permitted to impose abortion restrictions to protect fetal life only in the third trimester of pregnancy. Because the viability-testing requirement took effect as early as twenty weeks, four weeks before the beginning of the third trimester, Rehnquist faced a seeming conflict with Roe.

Rehnquist concluded that the Roe trimester framework was too rigid and that if the state has an interest in preserving potential human life after viability, it also has an interest in preserving that potential life before viability. Although Rehnquist's statement about preserving potential human life might be read to mean that states could outlaw abortions before the twenty-fourth week and thereby overturn Roe, he refrained from reaching that conclusion, because that question was not before the Court.

A fourth vote for the majority position was cast by Justice Scalia. Scalia, unlike Rehnquist, concluded that Roe should be overturned and that states should be free to regulate or criminalize abortion at any stage of pregnancy.

The fifth vote for the majority position was cast by Justice O'Connor. Unlike the other members of the majority, she did not argue that Roe needed to be overturned, or even modified, to reach the conclusion that the viability provision was constitutional. O'Connor reinterpreted the Court's prior decisions to require that states "not impose an undue burden on a woman's abortion decision." Because she concluded that the viability tests could be performed without markedly increasing the cost of abortion, O'Connor concluded that the undue burden test had been satisfied. O'Connor's framework, unlike that of Rehnquist or Scalia, made it clear that states could not criminalize abortion as they had in the pre-Roe era because a criminal penalty certainly would constitute an "undue burden." What other kinds of regulations would impose an undue burden, however, is unclear from O'Connor's opinion.

Justice Blackmun wrote a blistering opinion for the dissenters. He accused Justice Rhenquist of being deceptive in not acknowledging that he was really overturning Roe. Moreover, he chided Rhenquist for not giving the Court a usable framework to evaluate future abortion cases. Blackmun said that he feared "for the liberty and equality of the millions of women who have lived and come of age in the sixteen years since Roe was decided" and "for the integrity of, and public esteem for, this Court." Substantively, he accused the Court of offering no rationale for its rejection of the trimester framework, saying that the Court used an "it is so because we say so" jurisprudence. The trimester framework, he argued, does make sense because it reflects the developmental view that one is more entitled to the rights of citizenship as one increases one's ability to feel pain, to experience pleasure, to survive, and to react to one's environment. Finally, he criticized the test purportedly used by the majority—whether the regulation "permissably furthers the State's interest in protecting potential human life"—as circular and meaningless. He argued that the standard of whether a regulation "permissably furthers" the state's interest was itself the question before the Court; it therefore could not be the standard that the Court applied in resolving the question.

Although Justice Blackmun wrote his dissent in strong language and even mentioned that the majority's opinion would have a dramatic effect on the "liberty and equality" of women's lives, there is no specific discussion of that effect. Blackmun spent most of his opinion explaining why there was no good reason to change the course of using the right of privacy on which the Court had commenced in his opinion in Roe.

One of the most disappointing parts of Blackmun's opinion is his conclusion that if the majority's technical interpretation of the provision were correct, he "would see little or no conflict with Roe. " In other words, he appeared to agree with Justice O'Connor that such a provision would not constitute an undue burden on a woman's abortion decision. Blackmun dissented from the majority because he disagreed with its technical interpretation of the viability-testing provision, not because he fundamentally disagreed about the impact that requirement would have on women's lives and well-being.

If Justice Blackmun had truly considered the "liberty and equality" interests of sixteen million women, he would not have been so easily satisfied. As the briefs that were presented to the Court by women of color and teenage women dramatically showed, raising the cost of abortion, even marginally, has a marked impact on the ability of poor women to purchase abortions. And because women of color and teenage women are more likely to delay abortion decisions, they will be hit harder by the viability-testing requirement than are other women. For poor women, even the requirement that they pay for their own abortions is an undue burden on their reproductive decision making. Raising the cost of abortion presents an even greater—and even more undue—burden.

From the perspective of protecting the well-being of women, Webster is doubly discouraging. Not only did the majority of the Court not seem to understand the meaning of abortion regulations in women's lives, but even the dissenters did not display much understanding or sensitivity. They seemed more determined to protect the integrity of their prior decisions than to consider the reality of new abortion restrictions on women's lives.

Ruth Colker
(1992)