ABORTION AND THE CONSTITUTION (Update 1b)

With President ronald reagan's elevation of Justice william h. rehnquist to chief justice and his appointment of Justices antonin scalia and anthony m. kennedy, many expected the Supreme Court to revisit its decision in roe v. wade (1973), which struck down laws against abortion. Tension mounted when the Supreme Court noted probable jurisdiction in webster v. reproductive health services (1989). Relying on Roe, the lower court in Webster had held unconstitutional several provisions of a Missouri statute regulating abortions, including a statement from its preamble that human life begins at conception, a requirement that the aborting physician perform a viability test when he or she has reason to believe the woman is at least twenty weeks' pregnant, and a prohibition on the use of public employees or public facilities to perform an abortion that is not necessary to save the mother's life. In its appeal, Missouri, joined by the Department of Justice as amicus curiae, argued not only that the invalidated provisions should be upheld under Roe and the Court's subsequent abortion cases but, more significantly, that Roe itself should be overruled.

Without passing on the constitutional validity of all the statutory provisions that had been challenged, the Court, in a 5–4 decision, reversed the lower court and gave the prolife movement its first major legal victory since Roe was decided. Whether Webster will prove a truly significant victory for this movement, however, remains to be seen. First and most encouraging for prochoice advocates, the Court once again found no occasion to revisit Roe 's controversial conclusion that the right to an abortion is protected by the Constitution's due process clauses. Second, although the Court's judgment of reversal garnered majority support, portions of Chief Justice Rehnquist's opinion did not obtain five votes. Particularly noteworthy was Justice sandra day o'connor's refusal to join important sections of the opinion. Third, the extraordinary media publicity surrounding Webster may have contributed to exaggerated perceptions by both sides of what the Court actually held.

In upholding Missouri's restriction on the use of public employees or facilities to perform abortions, the Webster majority relied on the Court's previous abortion-funding cases. The Court emphasized, as it had done before, that as long as the states do not actually restrict the abortion decision, the Constitution allows them to make the value judgment that childbirth is preferable to abortion. In denying the use of public employees and facilities for abortions, Missouri did not place any obstacles in the path of women who choose to have an abortion; that is, Missouri's restriction left pregnant women with the same choices they would have had if the state had not chosen to operate public hospitals at all. In short, although the Constitution, as interpreted by Roe, may not allow the states to prohibit abortions, it does not give either doctors or women a right of access to public facilities for the performance of abortions.

Many prochoice commentators have criticized this aspect of the Court's holding in Webster because of its alleged effect on the availability of abortions for certain women. The Court's task, however, was to decide not whether Missouri made a wise or good policy choice but whether anything in the Constitution invalidated the choice that Missouri made through its democratic process. Viewed in this light, Webster and the previous abortion-funding cases are consistent with prevailing constitutional doctrine. Few would argue, for example, that because the state may not prohibit parents from sending their children to private schools, the state must fund private education for those parents who cannot afford it.

The statute's viability-testing requirement gave the Court more difficulty. The section of Chief Justice Rehnquist's opinion regarding this requirement, which was joined by only two other Justices, said that the constitutionality of the viability-testing requirement was called into doubt by the rigid trimester system established in Roe and followed in the Court's other abortion cases. The Chief Justice reached this conclusion because mandatory testing when the physician reasonably believes the pregnancy is at least in the twentieth week may impose burdens on second-trimester abortions involving fetuses who have not yet become viable. Taking the position that stare decisis has less force in constitutional law than elsewhere, the plurality then abandoned Roe 's trimester framework as unsound in principle and unworkable in practice.

The plurality emphasized that the concepts of trimesters and viability are not found in the Constitution's text or in any other place one might expect to find a constitutional principle, thus describing the Court's previous holdings as resembling an intricate code of regulations more than a body of constitutional doctrine. The plurality also questioned why the state's interest in protecting potential human life should come into existence only at the point of viability. Finally, eschewing strict scrutiny, the plurality upheld Missouri's testing requirement by concluding that it permissibly furthers the state's legitimate interest in protecting potential life. Without otherwise purporting to disturb Roe, the plurality thus modified and narrowed it.

Justice harry a. blackmun, the author of Roe, wrote a stinging dissent contending that Roe could not survive the plurality's analysis. Justice Scalia wrote a concurring opinion agreeing with Justice Blackmun that the plurality's analysis effectively would overrule Roe, something he was prepared to do explicitly. Nevertheless, a majority of the Court did not accept Justice Scalia's invitation. Even assuming that the three Justices in the plurality share the view that their anlaysis is devastating to Roe—and it is not clear that they do—it requires five votes, not four, to overrule Roe. On the fundamental issue of whether Roe should be totally overruled, the still unresolved question is where Justice O'Connor stands.

Although she had strongly attacked the trimester system in her dissent in Akron v. Akron Center for Reproductive Health Services and had defended the position that the state's interest in protecting potential life exists throughout all the stages of pregnancy, Justice O'Connor did not join the plurality's rejection of the trimester system in Webster. Instead, she criticized the plurality for unnecessarily reaching out to modify Roe, and insisted that the viability-testing requirement was constitutional even when considered under the Court's previous cases. In her view, the testing requirement did not unduly burden the woman's abortion decision, and only on this ground did she vote to sustain the testing requirement. Prochoice advocates thus may have reason to hope that Justice O'Connor has had a change of heart since Akron. In contrast, prolife advocates may take heart that Justice O'Connor indicated that she both continues to view the trimester framework as problematic and would find it appropriate to reexamine Roe in a case involving a statute whose constitutionality actually turned on its validity.

Because the plurality's reasoning in Webster tracks rather closely Justice O'Connor's dissent in Akron, it is fair to question, as Justices Blackmun and Scalia did, whether that reasoning, if explicitly endorsed in the future by a Court majority, would effectively overrule Roe. From the standpoint of logic, the position that Webster completely undermines Roe has considerable force. If the state's interest in protecting potential life exists equally at all stages of pregnancy, it would seem that the state should be able to prohibit abortions not simply in the third trimester, as Roe held, but throughout pregnancy. As Justice O'Connor stated in Akron, "potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward." In Justice Blackmun's dissenting words, "if the Constitution permits a State to enact any statute that reasonably furthers its interest in potential life, and if that interest arises as of conception," then it is difficult to see why any statute that prohibits abortion is unconstitutional. The Court can escape the force of this reasoning only by repudiating the reasoning in the plurality's opinion in Webster.

It is curious that the future of Roe might turn on how a Court majority ultimately views the validity of the trimester framework. The fundamental jurisprudential issue in both Roe and Webster, as Justice Blackmun correctly recognized, is whether the Constitution protects an "unenumerated" general right of privacy or, at least, whether such an unenumerated right properly includes the right to terminate a pregnancy. The Court rejected Roe 's trimester framework in part because the concepts of trimesters and viability cannot be found in the Constitution's text, but this can equally be said of the right of privacy in general and of the right to terminate a pregnancy in particular. If the Constitution's text must be the source of constitutional rights, more than the trimester system is illegitimate about Roe. However, if the Court continues to adhere to the view that the Constitution can protect unenumerated rights and if one of these protected unenumerated rights is the right to terminate a pregnancy, Justice Blackmun would seem correct in finding it irrelevant that the Constitution does not refer to trimesters or viability. How could it, when it does not refer to abortion at all?

The debate about unenumerated rights is important because of its implications for the Court's proper role in constitutional interpretation. Viewed in these terms, the debate about Roe is a debate not about abortion as such but about the Court's role and the role of judicial review under the form of government established by the Constitution. Those who oppose the Court's use of unenumerated rights to invalidate statutes essentially argue that such action constitutes an abuse of authority, one that allows the Court to substitute its own value judgments for those of the politically accountable branches of government. Justice Scalia, who alone in Webster was prepared to overrule Roe, thus insisted that the Court in Roe had entered an area that, because of the Constitution's silence, demands political answers. He observed that both sides had engaged in street demonstrations and letter-writing campaigns to influence the Court's decision—the kind of activity, in his view, that should be directed at elected legislators rather than at judges who hold life tenure and who are sworn to uphold the Constitution even against majority will. From this perspective, Roe is no more defensible than the now infamous decision in lochner v. new york (1905), which invalidated economic reform legislation on the basis of rights that could not be found in the Constitution's text.

Roe has been attacked even by some who defend the existence of unenumerated rights that the judiciary may enforce. One argument contends that Roe improperly rejected a natural law position with regard to human existence by permitting the state, through the device of law, to define human life in a way that excludes fetuses. Under this view, laws banning abortions are not simply constitutionally permissible but constitutionally required. Whatever the present Court does regarding the abortion issue, it does not seem prepared to embrace such an argument.

Shortly after deciding Webster, the Court agreed to decide cases raising issues concerning abortion statutes in other states. In these cases, the Court upheld parental notification without making further modifications of Roe. Whether or not the Court uses future cases to reexamine Roe, it is clear that a majority of the Court is now inclined to permit the states greater leeway in regulating abortions. How much additional regulation the states will enact, if so permitted, is not easy to predict. After Webster, abortion became a key issue in several political races, and the prochoice side of the debate came away with some resounding political victories. Perhaps these elections have something to say to those who would substitute judicial activism for the political process. At the least, the up-or-down choice presented by Roe 's constitutionalization of abortion seems to have precluded the various states from achieving through democratic means the political compromises that many other societies have reached on the abortion question.

Joseph D. Grano
(1992)

(see also: Abortion and the Constitution; Anti-Abortion Movement; Reproductive Autonomy.)

Bibliography

Bopp, James, Jr. 1989 Will There Be a Constitutional Right to Abortion After Reconsideration of Roe v. Wade? Journal of Contemporary Law 15:131–173.

Bork, Robert J. 1989 The Tempting of America, pages 110–116. New York: Free Press.

Farber, Daniel 1989 Abortion After Webster. Constitutional Commentary 6:225–230.

Glendon, Mary Ann 1987 Abortion and Divorce in Western Law. Cambridge, Mass.: Harvard University Press.

Grano, Joseph 1981 Judicial Review and a Written Constitution in a Democratic Society. Wayne Law Review 28:1–75.

Hirshman, Linda 1988 Bronte, Bloom and Bork: An Essay on the Moral Education of Judges. University of Pennsylvania Law Review 137:177–231.

Loewy, Arnold 1989 Why Roe v. Wade Should Be Overruled. North Carolina Law Review 67:939–948.

Noonan, John 1984 The Root and Branch of Roe v. Wade, Nebraska Law Review 63:668–679.