WEBSTER V. REPRODUCTIVE HEALTH SERVICES

In Webster v. Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989), the United States Supreme Court reviewed the constitutionality of several Missouri statutes restricting access to abortion services and counseling. Webster is significant because it narrowed the Supreme Court's holding in the landmark case roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), by modifying the trimester analysis under which the constitutionality of abortion regulations had been evaluated during the intervening 16 years.

The case arose in 1986 when seven Missouri statutes regulating abortion were challenged in a class action filed in the U.S. District Court for the Western District of Missouri. The class action was brought on behalf of all healthcare professionals who were providing abortion services in the state of Missouri and on behalf of all pregnant women who were seeking access to those services. The federal district court declared all seven statutes unconstitutional, and the U.S. Court of Appeals for the Eighth Circuit affirmed the district court's decision. The Missouri attorney general appealed the case to the U.S. Supreme Court.

Webster splintered the nine Supreme Court justices. Chief Justice william rehnquist wrote the Court's plurality opinion, joined by Justices byron white and anthony kennedy. Justices sandra day o'connor and antonin scalia wrote separate concurring opinions. Justices harry blackmun and john paul stevens wrote separate dissenting opinions, with Justices william brennan and thur-good marshall joining Blackmun's dissent.

The plurality opinion was separated into three parts. First, the Court upheld the constitutionality of Missouri Revised Statutes section 1.205.1, which provided that the "life of each human being begins at conception" and that all "unborn children have protectable interests in life, health, and well-being." The plaintiffs had argued that this provision was inconsistent with previous cases in which the Court had prohibited states from adopting a single theory regarding when life begins. The Supreme Court disagreed with this argument, concluding that this statutory language had no operative legal effect because it was contained in a legislative preamble. Thus, this particular Missouri statute raised no constitutional issue for the Court to decide.

Second, the Court upheld the constitutionality of Missouri Revised Statutes section 188.20, which prohibited abortions at public hospitals or on other property owned by the state. The plaintiffs had asserted that the Constitution guarantees every woman access to public facilities for the purpose of obtaining an abortion. The Court took exception to this argument, observing that "[n]othing in the Constitution requires states to enter or remain in the business of performing abortions." Instead, the Court said, states may take affirmative steps to encourage childbirth over abortion, which is exactly what the state of Missouri did in this case. Although the statute in question prevented women from seeking abortion services at public facilities, the Court noted that pregnant women in Missouri could still obtain abortion services from private healthcare providers.

Third, the Court upheld the constitutionality of Missouri Revised Statutes section 188.029, which required physicians to perform certain medical tests when there was reason to believe a fetus had reached at least 20 weeks of gestational age. These tests, which included assessments of fetal weight and lung maturity, were designed to determine the viability of an unborn child. Because this statute created a presumption of viability at 20 weeks, the plaintiffs contended that it violated the trimester framework established by Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

In Roe the Supreme Court ruled that states have no legitimate interest in regulating abortion during the first trimester of pregnancy, and that the decision to terminate a pregnancy during this period rests solely with the pregnant woman and her attending physician. During the second trimester, the Court said in Roe, states may pass abortion regulations that are reasonably related to preserving the mother's health. During the third trimester, Roe held that states may ban abortion altogether, unless requiring childbirth would endanger the life of the mother. The Roe decision was based on the premise that states have a compelling interest in protecting fetal life that is triggered by the onset of the third trimester, at which point fetuses typically become viable outside the womb.

In Webster the Supreme Court acknowledged that the Missouri statute clashed with the Roe trimester analysis by compelling doctors to perform viability examinations during the second trimester of pregnancy, even though such tests were intended to protect the life of a fetus and were unrelated to preserving maternal health. However, the rigid trimester formula created by Roe, the Court pointed out, failed to take into account that some fetuses reach viability before the twenty-fifth week of pregnancy. The Court also queried why a state's interest in protecting fetal life should be cognizable only after the second trimester. States have an important interest in protecting fetal life throughout pregnancy, the Court posited.

The Court then held that the Missouri statute requiring viability examinations during the second trimester was reasonably related to this important governmental interest. The Court emphasized that its holding in Webster would leave undisturbed the fundamental holding of Roe. The Court reiterated that pregnant women still enjoy a legal right to abortion that is protected by the due process clauses of the fifth amendment and fourteenth amendment to the U.S. Constitution. At the same time, the Court said that its decision in Webster had modified the Roe trimester analysis by permitting states to regulate abortions prior to the twenty-fifth week of pregnancy.

In his concurring opinion, Justice Scalia expressed regret that the Court had not taken this opportunity to completely overrule Roe. The legality of abortion, Scalia argued, is a political issue that should be decided by state legislatures, whose members are democratically elected to office, and not by federal courts, whose members are appointed to the bench for life. In her concurring opinion, Justice O'Connor urged a more moderate approach. Prior to the point in which a fetus reaches viability, O'Connor advocated, states should be allowed to pass any abortion regulations that do not "unduly burden" a women's right to terminate her pregnancy. According to O'Connor, the severity of a particular regulatory burden would be evaluated on a case-by-case basis. This "undue burden" analysis was eventually adopted by the Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).

Of the two dissenting opinions, Blackmun's was the more vigorous. As the author of the Roe opinion, Blackmun chastised the Court for permitting Missouri to regulate abortion during the second trimester of pregnancy in contravention of established precedent, and characterized the Court's opinion as an invitation to enact draconian abortion regulations. The plurality opinion conceded that the Court's holding in Webster would enable states to regulate abortion earlier in a pregnancy but reminded the dissenting justices that the decision on how early would partially rest with the American people and their elected representatives.

further readings

Parrish, Jenni, ed. 1995. Abortion Law in the United States. New York: Garland.

Rossotti, Jack E., Laura Natelson, and Raymond Tatalovich. 1997. "Nonlegal Advice: The Amicus Briefs in Webster v. Reproductive Health Services." Judicature 81 (November-December).

Spahn, Elizabeth, and Barbara Andrade. 1998. "Mis-conceptions: The Moment of Conception in Religion, Science, and Law." University of San Francisco Law Review 32 (winter).

Weddington, Sarah. 1992. A Question of Choice. New York: Putnam.

cross-references

Fetal Rights; Precedent; Privacy; Substantive Due Process.

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

WEBSTER V. REPRODUCTIVE HEALTH SERVICES

WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490 (1989), upheld provisions of a Missouri statute that restricted access to abortions, but declined to rule on whether the statute's declaration that human life begins at conception was constitutional. Webster involved a direct challenge to Roe v. Wade, 410 U.S. 113 (1973), which held that women have a constitutionally protected right to terminate a pregnancy. Roe decreed a trimester approach: as a woman's pregnancy progresses, the woman's right to obtain an abortion decreases, and the state's right to regulate abortion to protect the mother's health and the unborn child's potential life increases.

Sixteen years after Roe, the Supreme Court in Webster considered the constitutionality of a Missouri statutory prohibition on the use of public facilities or employees to carry out or assist in abortions unless it was necessary to save the mother's life. The statute's preamble stated that "the life of each human being begins at conception" and "unborn children have protectable interests in life, health, and well-being"; and the statute required that doctors ascertain the viability of an unborn child before performing an abortion.

The closely divided Court, in an opinion written by Chief Justice Rehnquist, ruled that the prohibition on using public resources to carry out abortions and the requirement for a physician to determine viability were both constitutional. The Court declined, however, to rule on the central issue of whether the preamble's assertion that life begins at conception was constitutional on the grounds that Missouri's courts had not yet ruled on whether the preamble formed part of the regulations of the statute.

In sum, not withstanding shifts in the personnel of the court since Roe, including the appointment of three justices by President Reagan (who opposed abortion), the Supreme Court in Webster did not overrule Roe. The sharply divided Court, however, left the future of Roe uncertain; Justice O'Connor—who granted the vital fifth vote upholding the constitutionality of the statutory restrictions—declined to rule on whether the Roe framework was still valid. Many states responded by passing restrictive antiabortion laws in an effort to test the extent that a woman's right to an abortion merited constitutional protection. The lack of clarity from the Webster ruling thus set the stage for Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In that case a splintered Supreme Court implicitly restructured the Roe standard by applying a less strenuous test for determining the constitutionality of abortion legislation.

BIBLIOGRAPHY

Craig, Barbara Hinkson, and David M. O'Brien. Abortion and American Politics. Chatham, N.J.: Chatham House, 1993.

Drucker, Dan. Abortion Decisions of the Supreme Court, 1973– 1989: A Comprehensive Review with Historical Commentary. Jefferson, N.C.: McFarland, 1990.

Goldstein, Leslie Friedman. Contemporary Cases in Women's Rights. Madison: University of Wisconsin Press, 1994.

Mersky, Roy M., and Gary R. Hartman. A Documentary History of the Legal Aspects of Abortion in the United States: "Webster v. Reproductive Health Services." Littleton, Colo.: Fred B. Rothman, 1990.

Vitiello, Michael. "How Imperial Is the Supreme Court? An Analysis of Supreme Court Abortion Doctrine and Popular Will." University of San Francisco Law Review 34 (fall 1999): 49.

Elizabeth LeeThompson

See alsoAbortion .