Webster v. Reproductive Health Services

Webster v. Reproductive Health Services, 492 U.S. 490 (1989), argued 29 Apr. 1989, decided 3 July 1989 by vote of 5 to 4; Rehnquist for the plurality, concurrences by Scalia and O'Connor, Blackmun, joined by Brennan and Marshall, and Stevens in dissent. Webster upheld various restrictions on the availability of abortion, but, more importantly, the decision was taken by partisans in the political battles over abortion as a signal that the Court was willing to accept substantially more restrictive regulation than it had earlier. As a result, interest groups, especially those supporting the abortion rights, began to mobilize more vigorously for political action in state legislatures and election campaigns.

Webster involved several restrictions imposed on abortions by Missouri. A preamble to the statute stated that life begins at conception; a majority of the Court held that this statement had no operative legal effect and therefore did not conflict with the statement in Roe v. Wade (1973) that a state may not adopt a particular theory of when human life begins. Another provision barred the use of state property for abortions; as a result, no public hospital in the state could perform an abortion even if the patient paid for it herself. The provision, if read broadly, might have barred private hospitals located on land leased from the state from performing abortions. A majority of the Court did not decide whether this provision would be constitutional if read broadly, holding that in its core application the provision was indistinguishable from the ban on public funding of abortions whose constitutionality had been upheld in Harris v. McRae (1980).

The third provision at issue required physicians to perform medically appropriate tests to determine the viability of the fetus in cases where, in the doctor's judgment, the fetus was twenty or more weeks of gestational age. In the framework established by Roe v. Wade, twenty weeks falls within the second trimester and, under Roe, regulation was permissible only to assure the health of the woman. Justice Sandra Day O'Connor, who agreed that the medical test provision was constitutional, noted that there was roughly a four‐week margin of error in determining gestational age. Thus, when a doctor believes a fetus to be twenty weeks old, it might be twenty‐four weeks old, which would place the pregnancy in its third trimester. Because, under Roe, states can regulate third‐trimester abortions to protect fetuses if they are viable, O'Connor argued that the medical testing provision was consistent with Roe.

The plurality opinion by Chief Justice William Rehnquist argued, in contrast, that the provision was a second‐trimester regulation and therefore could not be upheld unless Roe were modified. The opinion would have modified Roe. It acknowledged that the woman's interest in choosing abortion or not was a “liberty” interest protected by the Due Process Clause. But, the plurality said, that interest could be affected, consistent with the Constitution, whenever the state had a sufficient countervailing interest. Roe had said that the state's interest in protecting potential life increased in weight as the pregnancy advanced. The plurality rejected that analysis and insisted that the state's interest in protecting potential life was of equal weight throughout the pregnancy. Because the medical test requirement promoted the state's interest, it was constitutional.

The plurality opinion did not explicitly overrule Roe v. Wade, although the analytic framework it established appears to authorize states to adopt any regulations they desire to promote the interest in protecting potential life, including criminal bans on performing or obtaining abortions. The plurality disclaimed that it envisioned such an outcome, saying that it had confidence that state legislatures would not return to the “dark ages” of such severe restrictions on the availability of abortions. Justice Antonin Scalia concurred in the result but chastised the plurality and particularly O'Connor for failing to take the step of overruling Roe.

Justice Harry Blackmun, the author of Roe, wrote a vigorous dissent, whose tone indicates that the Court had come close to overruling Roe. Like the plurality, he took the medical test provision to be a second‐trimester regulation that was not designed to protect the health of the woman, and he would have held that it was therefore unconstitutional.

As a matter of legal analysis, Webster might have been treated as unexceptional. Blackmun indicated that he agreed with the main lines of O'Connor's analysis of the medical test requirement if it was treated as a requirement to find out whether the pregnancy was in the second or third trimester. The ban on the use of public facilities was not significantly different in law, and probably not in practical impact, from the ban on the use of public funds to pay for abortions that the Court had upheld almost a decade earlier.

Interest groups organized around the abortion issue, however, interpreted Webster as a major assault on Roe. Both sides in the abortion controversy saw political advantage to be gained by representing it as a major change in the law. Proponents of increased restrictions on the availability of abortions used the decision to prod state legislatures into doing more than they had already done; some state legislatures enacted laws that were clearly unconstitutional under Roe. Opponents found that they could mobilize a good deal of latent support for their position by presenting the decision as a major threat to the right to choose abortion; courts could no longer be relied on to block restrictions on the availability of abortions.

See also Gender; Privacy.

Mark V. Tushnet