WEBSTER v. REPRODUCTIVE HEALTH SERVICES 492 U.S. 490 (1989)

The Webster case had been advertised as the one in which the Supreme Court might overrule roe v. wade (1973), but in the event the decision offered only minor adjustments at the margins of the constitutional doctrine governing a woman's right to have an abortion. The decision's political consequences, however, were anything but minor.

From the time of the Roe decision, Missouri has produced a steady stream of legislation designed to restrict women who seek abortions and the doctors who attend them. In this case the Court considered several provisions of a 1986 Missouri law: (1) the preamble, containing the legislature's "findings" that human life begins at conception and that "unborn children have protectable interests in life, health, and well-being"; (2) a prohibition on the use of public facilities or employees to perform abortions; (3) a prohibition against public funding of abortion counseling; and (4) a requirement that a doctor conduct a fetal viability test before performing an abortion. Chief Justice william h. rehnquist wrote for the Court.

The Court refused to pass on the preamble, saying that, for all the Justices knew, the "findings" had no effect beyond the expression of the legislature's value judgment. The Court upheld the prohibition on using public facilities or public employees in performing abortions, reaffirming the holdings of maher v. roe (1977) and harris v. mcrae (1980) that the state has no constitutional duty to provide assistance to women who cannot afford abortions. The controversy over the prohibition on using public money for abortion counseling was dismissed for mootness because the plaintiffs agreed that this part of law did not affect them.

On the validity of the viability-testing provision there was no opinion of the court. Chief Justice Rehnquist, for three Justices, interpreted this requirement to conflict with the analysis in Roe v. Wade and concluded that, to the extent of the conflict, Roe must give way. The testing requirement might make abortions more costly, but it "permissibly further[ed] the State's interest in protecting potential human life" and was constitutional. Justice sandra day o'connor agreed that the testing requirement was valid, but thought it was consistent with the Court's prior decisions. She thus resisted the invitation to address the question of Roe 's continuing force and reaffirmed her earlier position that a law should not be invalidated unless it "unduly burdens" the right to seek an abortion. Justice antonin scalia, concurring in upholding the testing requirement, agreed with the dissenters that the Chief Justice's opinion on this issue would effectively overrule Roe. He thought, however, that the Court should perform its overruling of Roe more explicitly and criticized the majority for failing to do so. In an especially scornful footnote, he rejected Justice O'Connnor's position and lectured her on the vocabulary of "viability."

Justice harry a. blackmun, for three Justices, dissented, strongly reaffirming the correctness of Roe v. Wade and its successor decisions. He saw the Chief Justice's opinion on Missouri's requirement of viability testing as, in effect, calling for Roe to be overruled and added his gloomy prediction of a piecemeal process of overruling "until sometime, a new regime of old dissenters and new appointees will declare what the plurality intends: that Roe is no longer good law."

The most important result of Webster was political: the mobilization of nationwide support for reproductive freedom. In the year following Webster, forty-four legislatures met, and about two-thirds of them considered proposals to restrict abortions; only four adopted restrictions. If Roe was a catalyst for the "prolife" movement, Webster was a catalyst for the "prochoice" movement. Governors, legislators, and even the President seemed to recognize that two strong views now demanded a hearing.

Kenneth L. Karst
(1992)