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Webster v. Reproductive Health Services  (1989)

In Depth


Reproductive Health Services, Planned Parenthood of Kansas City, three physicians, one nurse, and a social worker, filed suit in a federal district court in Missouri to block enforcement of a state law that regulated abortion. They named the state attorney general, William Webster, who had ultimate responsibility for enforcement of the law, as defendant. The district court ruled seven provisions of the act unconstitutional. The Eighth Circuit Court of Appeals affirmed most of the lower court's decision.

Before the Supreme Court, four provisions of the law were at issue.

The Statute under Review

The four provisions of the Missouri statute  under review were: (1) the preamble to the law stating that the life of each human being begins at conception and that, subject to Supreme Court decisions and the United States Constitution, state law be interpreted to give unborn children the same rights enjoyed by other persons, (2) a requirement that physicians performing abortions on women who are at least 20 weeks pregnant conduct testing to determine whether the unborn child is viable, (3) a prohibition on the use of public employees and facilities from performing abortions except those necessary to save a woman's life, and (4) a prohibition on the use of state funds to encourage or counsel a woman to have an abortion not necessary to save her life.

The Court's Holding

In an opinion authored by Justice Rehnquist, the Court upheld the preamble, the viability testing requirement, and the restriction on the use of public employees, funds and facilities to perform abortions.  It found the restriction on the use of state funds to encourage or counsel abortions moot.

The Court specifically declined to overrule Roe.

The opinion was authored by Chief Justice Rehnquist but a majority of the Court did not join him in all aspects of the decision.  One part of the decision had unanimous support, while other parts had plurality support, as noted below.

The Court's Reasoning

The Preamble. The Court noted that the preamble by its terms did not regulate abortion but merely expressed a judgment favoring childbirth over abortion, a judgment that prior case law, specifically, Maher v. Roe, permitted.   But the Court added that if the state were to use the preamble to limit the conduct of the plaintiffs as abortion providers, the preamble might present a justiciable issue at a later date. The Court noted that the preamble had applications in other aspects of state law, such as tort and probate law.  For the time being, the Court did not address the preamble's constitutionality because it did not present an issue ripe for review.   Justices White, O'Connor, Scalia and Kennedy joined this part of the Chief Justice's opinion.

Restriction on the Use of Public Funds, Employees and Facilities for the Performance of Abortions. The Court upheld the law's ban on the use of public funds, employees and facilities for the performance of abortions. The Court noted there is in general no right to any form of government aid. The Court said that the law is valid under Roe because denial of funding and other public resources does not place a government obstacle in a woman's path to seeking an abortion. The state need not, the Court said, facilitate abortions through funding or other public resources. There is no constitutional right of access to publicly sponsored abortions.  Justices White, O'Connor, Scalia and Kennedy joined this part of the Chief Justice's decision.

Restriction on the Use of Funds to Counsel and Encourage Abortions. A unanimous Court found this issue moot because the attorney general offered an interpretation of the provision that satisfied the plaintiffs.   That interpretation said that the limitation on funding applied only to those government officials responsible for expending public funds.

Viability Testing. The Chief Justice voted to uphold the requirement of viability testing insofar as the law allowed the physician some discretion to determine which measures of viability would be "useful" in a particular case. The Chief Justice said that the testing requirement furthered Missouri's interest in human life.  He noted that the testing requirement could apply to some second trimester abortions. The Chief Justice declined to apply what he called Roe's "rigid trimester analysis" to this provision, and he criticized the trimester framework as, among other things, inconsistent with the notion of a Constitution cast in general terms. To the extent that other cases -- the Court cited Colautti v. Franklin and Akron v. Akron Center for Reproductive Health -- would compel the Court to reach a different result, the Chief Justice declined to apply them.

Justices White and Kennedy joined this part of the Chief Justice's opinion.  Justices O'Connor and Scalia agreed that the viability testing provision was constitutional but gave different reasons.

Reconsideration of Roe. In a portion of the opinion joined only by Justices White and Kennedy, the Chief Justice concluded by saying that he would not deal with the question of Roe's validity because the factual situation presented in this case was different from that of Roe.

The Concurrences

Justice O'Connor. Justice O'Connor agreed with the decision to uphold the viability testing but she would have decided the issue in a different manner. Justice O'Connor found no conflict between the testing and the Court's prior abortion case law. She also indicated that the testing was constitutional because it created no "undue burden" on a woman's abortion decision.

Justice Scalia. Justice Scalia, like O'Connor, would have upheld the viability testing but on other grounds. Scalia said that he believed that the Court's reasoning effectively overruled Roe and that it should have done so explicitly. He noted that the Court's involvement in the abortion issue removed from the political process an issue that belonged there rather than in the judiciary.

The Dissents

Justice Blackmun (joined by Justices Brennan and Marshall). Justice Blackmun wrote a dissent in which he defended Roe v. Wade and accused the Court of attempting to erode Roe. Justice Blackmun would have struck down the preamble because, in his view, it would chill the exercise of a woman's right to an abortion and unconstitutionally burden the use of contraceptive devices.  He would have invalidated the ban on the performance of abortions in public facilities because he said it could have reached private hospitals leased on public land. He also believed the viability testing requirement did not rationally further any legitimate government interest.

Justice Stevens. In his dissent Justice Stevens wrote largely to challenge the Court's holding with respect to the preamble. Justice Stevens said the preamble violated the Establishment Clause because he thought it adopted an essentially religious view. He also wrote to say that he believed it would impact contraceptive use in violation of the Court's precedent on that issue in Griswold v. Connecticut and similar cases.

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