Webster v. Reproductive Health Services
492 U.S. 490 (1989)
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Rule of Law:
A state may prohibit the use of public employees and facilities for performing non-therapeutic abortions. A state may also require physicians to perform tests to determine fetal viability before performing an abortion on a woman believed to be 20 or more weeks pregnant, as the state's interest in potential life is not limited to the post-viability stage.
Facts:
- In June 1986, Missouri enacted a law (House Bill No. 1596) with several provisions regulating abortion.
- The law's preamble stated that "[t]he life of each human being begins at conception" and that unborn children have protectable interests.
- The law prohibited public employees, within the scope of their employment, from performing or assisting in abortions not necessary to save the mother's life.
- The law also banned the use of any public facility for the purpose of performing or assisting in such abortions.
- The law required any physician, before performing an abortion on a woman believed to be 20 or more weeks pregnant, to perform tests to determine the fetus's gestational age, weight, and lung maturity to ascertain viability.
- The plaintiffs in the case included state-employed health professionals and nonprofit corporations (Reproductive Health Services and Planned Parenthood) that provided abortion services and counseling in Missouri.
- These public employees, as part of their employment, counseled women about and performed non-therapeutic abortions.
Procedural Posture:
- Five state-employed health professionals and two nonprofit corporations (Reproductive Health Services, et al.) filed a class-action lawsuit against Missouri Attorney General William L. Webster in the U.S. District Court for the Western District of Missouri.
- Plaintiffs sought to have several provisions of a state abortion statute declared unconstitutional and their enforcement enjoined.
- The District Court, a trial-level court, declared the challenged provisions unconstitutional and enjoined the state from enforcing them.
- Webster, on behalf of Missouri, appealed to the U.S. Court of Appeals for the Eighth Circuit.
- The Court of Appeals, an intermediate appellate court, affirmed the District Court's judgment.
- The State of Missouri (appellant) then petitioned the U.S. Supreme Court for review, which was granted.
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Issue:
Do provisions of a Missouri statute that (1) ban the use of public employees and facilities for performing or assisting in non-therapeutic abortions, and (2) require physicians to perform viability tests for any fetus believed to be 20 weeks or older, unconstitutionally violate a woman's due process rights as established in Roe v. Wade?
Opinions:
Majority - Chief Justice Rehnquist
No. The challenged provisions of the Missouri statute do not unconstitutionally violate a woman's right to an abortion. The ban on using public facilities and employees is constitutional under the precedents of Maher, Poelker, and McRae, which held that the government is not required to fund or otherwise facilitate abortions and may make a value judgment favoring childbirth. Regarding the viability-testing requirement, the rigid trimester framework of Roe v. Wade is unsound and unworkable, resembling a code of regulations rather than a constitutional principle. The State’s interest in protecting potential human life exists throughout pregnancy, not just after viability. Therefore, the requirement that physicians conduct viability tests at 20 weeks permissibly furthers the State's legitimate interest in protecting potential life and is constitutional.
Concurring - Justice O'Connor
No. The Court's judgment is correct, but its reasoning goes too far. The viability testing requirement, when properly interpreted, does not conflict with any of the Court's past decisions concerning state regulation of abortion because it does not impose an 'undue burden' on a woman's abortion decision. Therefore, there is no necessity to reexamine the constitutional validity or the trimester framework of Roe v. Wade. It is a venerable principle of judicial restraint not to decide a constitutional question, especially one of this magnitude, in advance of the necessity of deciding it.
Concurring - Justice Scalia
No. The Missouri statute is constitutional, but the Court should have explicitly overruled Roe v. Wade. The plurality's approach of chipping away at Roe without overturning it prolongs the Court's self-awarded sovereignty over a political issue and creates legal chaos. The fundamental question of abortion's constitutionality should be decided now and returned to the democratic process, rather than being disassembled 'doorjamb by doorjamb.'
Concurring-in-part-and-dissenting-in-part - Justice Blackmun
Yes. The plurality opinion is a deceptive and radical reversal of abortion law that foments disregard for precedent. The public facilities ban is an unconstitutional affirmative step to constrict the availability of abortions, going beyond mere refusal to fund. The plurality's analysis of the viability-testing provision discards Roe's core principles and implicitly invites states to enact increasingly restrictive abortion regulations. While Roe survives today, it is not secure, and the plurality's reasoning signals its eventual demise, casting into darkness the hopes of women who have ordered their lives around the right to reproductive choice. A chill wind blows.
Concurring-in-part-and-dissenting-in-part - Justice Stevens
Yes. The preamble's declaration that life begins at conception is an unconstitutional legislative endorsement of a religious tenet, violating the Establishment Clause of the First Amendment. Furthermore, the viability testing requirement, as plainly written, is manifestly unconstitutional because it is irrational and imposes significant health risks and costs for no legitimate medical reason. The Court should not have strained to place a saving construction on the statute but should have invalidated it under existing precedents.
Analysis:
This decision marked a significant turning point in abortion jurisprudence by undermining the foundational principles of Roe v. Wade without explicitly overturning it. By discarding the rigid trimester framework and allowing states to assert a compelling interest in potential life before viability, the plurality opinion opened the door for states to enact a wider range of abortion restrictions. The deeply fractured nature of the Court, with no majority opinion on the central reasoning regarding Roe, created legal uncertainty and set the stage for future challenges that would eventually lead to the 'undue burden' standard articulated in Planned Parenthood v. Casey.
