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

• 492 U.S. 490 (1989)
• Vote: 5–4
• For the Court: Rehnquist
• Concurring: Scalia and O'Connor
• Dissenting: Blackmun, Brennan, Marshall, and Stevens

In 1986 the state of Missouri passed a law that placed certain restrictions on the performance of abortions. This law was challenged as an unconstitutional violation of women's rights by Reproductive Health Services, a federal organization providing assistance for women seeking abortions. A district court and circuit court of appeals struck down the Missouri law because it placed restrictions on a woman's right to choose an abortion, which was established in Roe v. Wade (1973). The state of Missouri appealed to the U.S. Supreme Court.

The Issue

At issue was the constitutionality of the Missouri law restricting a woman's right to an abortion, which violated the precedent established by the Court in Roe v. Wade.

Opinion of the Court

Chief Justice William Rehnquist reported the opinion of a divided Court. A bare majority upheld two of several provisions of the Missouri law: “[W]e uphold the Act's restrictions on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions [those not necessary to save a mother's life].” The other provision of the Missouri law upheld by the Court was a requirement that “before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks … the physician shall first determine if the unborn child is viable [capable of life outside the womb].” Thus, the Webster decision modified the second-trimester rule in Roe v. Wade, which held that all regulations on abortion rights during the fourth through sixth months of pregnancy must be related to protecting the health of the mother. The Webster decision, however, stopped short of overturning Roe, which antiabortion advocates had wanted.

Dissent

Justice Harry Blackmun, author of the Court's opinion in Roe v. Wade, wrote a passionate dissent. He wrote, “Today, Roe v. Wade (1973) and the fundamental right of women to decide whether to terminate a pregnancy survive but are not secure.” According to Justice Blackmun, the Court's decision in the Webster case “implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that sometime down the line the Court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22, 1973."

Significance

This case fueled the heated public controversy about the abortion rights issue. Pro-choice groups, who favored abortion rights, saw the Court's decision as an assault on their position. Their opponents cheered it as the beginning of the end for Roe v. Wade. Both sides increased their attempts to influence state government officials to support their views in this ongoing dispute.

See also Abortion rights; Roe v. Wade

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.

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 sixteen years.

The case arose in 1986 when seven Missouri statutes regulating abortion were challenged in a class action filed in the United States District Court for the Western District of Missouri. The class action was brought on behalf of all health care 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 United States Court of Appeals for the Eighth Circuit affirmed the district court's decision. The Missouri attorney general appealed the case to the United States Supreme Court.

Webster splintered the nine justices sitting on the Supreme Court. 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 Thurgood 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 of 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 with 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 health care 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 twenty 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 twenty 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 Clause of the Fifth and Fourteenth Amendments to the United States 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 of how early would partially rest with the American people and their elected representatives.

See: Fetal Rights; Fourteenth Amendment; Privacy; Roe v. Wade; Substantive Due Process.

Webster v. Reproductive Health Services
Supreme Court of the United States
Argued April 26, 1989 Decided July 3, 1989
Full case name: William L. Webster, Attorney General of Missouri, et al. v. Reproductive Health Services, et al. Citations: 492 U.S. 490; 109 S. Ct. 3040; 106 L. Ed. 2d 410; 57 U.S.L.W. 5023; 1989 U.S. LEXIS 3290 Prior history: Appeal from the United States Court of Appeals for the Eighth Circuit
Holding
The Court approved a Missouri law that imposed restrictions on the use of state funds, facilities and employees in performing, assisting with, or counseling on abortions. The Supreme Court thus allowed for states to legislate in an area that had been previously been thought to be forbidden under Roe, reversing the Eighth Circuit.
Court membership
Chief Justice: William Rehnquist Associate Justices: William J. Brennan, Byron White, Thurgood Marshall, Harry Blackmun, John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy
Case opinions
Majority by: Rehnquist (parts I, II-A to -C) Joined by: unanimous (part II-C) Joined by: White, O'Connor, Scalia, Kennedy Concurrence by: Rehnquist (parts II-D, III) Joined by: White, Kennedy Concurrence by: O'Connor Concurrence by: Scalia Concurrence/dissent by: Blackmun Joined by: Brennan, Marshall Concurrence/dissent by: Stevens
Laws applied
U.S. Const. amend. XIV

Webster v. Reproductive Health Services, 492 U.S. 490 (1989), was a United States Supreme Court decision on July 3, 1989 that some believe in part compromised Roe v. Wade's protection of abortion. Specifically, it allowed a Missouri law that imposed restrictions on the use of state funds, facilities and employees in performing, assisting with, or counseling on abortions. The Supreme Court thus allowed for states to legislate in an area that had been previously been thought to be forbidden under Roe.

Background of the case

The state of Missouri passed a law which, in its preamble, stated that "the life of each human being begins at conception" and "unborn children have protectable interests in life, health, and well-being".

The statute

1. required that all Missouri state laws be interpreted to provide unborn children with rights equal to those enjoyed by other persons, subject to limits imposed by the federal constitution, and federal court rulings;
2. prohibited government-employed doctors from aborting a fetus they believed to be viable;
3. prohibited the use of state employees or facilities to perform or assist abortions, except where the mother's life was in danger; and
4. prohibited the use of public funds, employees, or facilities to "encourage or counsel" a woman to have an abortion, except where her life was in danger.

The Federal District Court struck down the above provisions, and prohibited their enforcement. This decision was affirmed by the Court of Appeals, which ruled that above provisions violated Roe v. Wade and later Supreme Court decisions. William L. Webster, then Attorney General for the state of Missouri, appealed the decision to the Supreme Court. It was argued before the Court on April 26, 1989.

The Supreme Court's decision

The Supreme Court overturned the decision of the lower court, stating that:

1. The court did not need to consider the constitutionality of the law's preamble, as it is not used to justify any abortion regulation otherwise invalid under Roe v. Wade.
2. The prohibitions on the use of public employees, facilities, and funds did not violate any of the Court's abortion decisions, as no affirmative right to the use of state aid for nontherapeutic abortions existed. The state could allocate resources in favor of childbirth over abortion if it so chose.
3. Provisions requiring testing for viability after 20 weeks of pregnancy were constitutional, but those limiting abortions in the second trimester of pregnancy were unconstitutional.

The concurrences

Justices Sandra Day O'Connor and Antonin Scalia wrote separate concurring opinions. O'Connor claimed that overturning Roe v. Wade in the context of the Webster litigation, where upholding Missouri's law could arguably be squared with Roe, would violate an important principle of judicial restraint. She then explained that she voted to uphold Missouri's law because she did not feel that it would place an undue burden on the right to abortion.

Scalia, who was angered by the refusal of the plurality, especially O'Connor, to overturn Roe v. Wade, wrote a sharp opinion concurring in the judgment. In his concurrence, he argued that the Court should have overturned Roe, rather than attempting to uphold both Roe and the laws at issue, and he attacked O'Connor's justification for declining to overturn Roe.

See also

• List of United States Supreme Court cases, volume 492

References

• "Webster v. Reproductive Health Services" on Wikisource.
• Webster v. Reproductive Health Services, 492 U.S. 490 (1989) from LII-Cornell Law School
• Caselaw Summary of Webster v. Reproductive Health Services
• Oyez Summary of Webster v. Reproductive Health Services

Abortion law (Part of the abortion series)
History & overview	Case law, History of abortion law, Laws by country
Types of regulation	Buffer zones, Conscience clauses, Fetal protection, Informed consent, Late-term restrictions, Parental involvement, Spousal consent

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