Appellants
William L. Webster, Attorney General of Missouri, et al.
Appellees
Reproductive Health Services, et al.
Appellants' Claim
That the U.S. Court of Appeals for the Eighth Circuit erred in overturning Missouri's laws restricting access to abortions.
Chief Lawyers for Appellants
William L. Webster, representing himself pro se (without counsel)
Chief Lawyer for Appellees
Frank Susman
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Anthony M. Kennedy, Thurgood Marshall, Sandra Day O'Connor, William H. Rehnquist (writing for the Court), Antonin Scalia, John Paul Stevens, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
3 July 1989
Decision
Upheld Missouri's restrictions on access to abortion.
Significance
This decision, while not granting the Bush administration's request to overturn Roe v. Wade, upheld Missouri's restrictions on abortion and all butinvited other states to pass further restrictive legislation.
In September of 1988, Justice Blackmun, author of the 1973 landmark opinion Roe v. Wade, stunned an audience at the University of Arkansas and madenational headlines when he questioned whether abortions would remain legal in America. "Will Roe v. Wade go down the drain?" he asked bluntly. Heanswered his rhetorical question with equal bluntness: "There's a very distinct possibility that it will, this term. You can count votes."
Earlier in 1986, the Supreme Court overturned a group of restrictive state requirements in its decision in Thornburgh v. American College of Obstetricians and Gynecologists. These overturned laws included certain requirements. First, the state had to inform women about the stages of fetal development, the possibility of adoption assistance, and the risks associated with abortion. Second, the state must compile detailed public records of each woman's age, marital status, race, reason for seeking abortion, and number of prior pregnancies. Third, if there was any possibility the fetus could live outside the womb (about 23 weeks), a second doctor must be present to care for the fetus before the abortion begins--regardless of whether the delay endangers themother's life or not. Fourth, abortions of viable fetuses must be performed using whichever method offers the best chance for live birth unless that method "would present a significantly greater risk to the life or health of the mother."
The vote in Thornburgh had been a close 5-4, and Justice Powell--challenged in that case--had since retired. Anthony M. Kennedy was Powell's successor, and his views on abortion were a matter of pessimistic speculation amongabortion rights supporters. If he chose to join Thornburgh's four minority justices in a future abortion rights case, legalized abortion might disappear.
Missouri, having had a number of restrictive regulations overturned by the Supreme Court and another set upheld, passed a tough law in June of 1986. The statute began with a preamble setting forth the state legislature's "finding"that "the life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and well-being."
As Chief Justice Rehnquist summarized later, the legislation "further requires that all Missouri laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the federal Constitution and[the Supreme] Court's precedents." They also included requirements that a physician make "such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child"if the physician thought the woman might be twenty or more weeks pregnant. Further, no public facilities or employees were to assist at or perform abortions nor may public funds be used to "encourag[e] or counsel" a woman to obtain an abortion, unless her pregnancy threatened her life.
Before the end of the month, Reproductive Health Services, Planned Parenthoodof Kansas City, and five medical providers employed by Missouri challenged the act in the U.S. District Court for the Western District of Missouri. The district court issued an order restraining enforcement of much of the act, andafter a trial in December of 1986, declared the act unconstitutional. The Court of Appeals for the Eighth Circuit upheld the lower court decision two years later, and Missouri appealed to the U.S. Supreme Court.
In March of 1989, the Supreme Court agreed that the administration of President George Bush could take part in the oral argument on behalf of Missouri. The Bush administration quickly made it clear that it planned to ask for nothing less than the complete overturn of Roe v. Wade. In angry response, 300,000 demonstrators gathered in Washington, D.C., to demand that abortion remain legal.
Friends of the Court
A record-breaking 78 amicus curiae briefs were filed. That was almostdouble the 42 such briefs filed in Roe v. Wade. This was a clear indication that both sides of the abortion debate viewed the forthcoming decisionas a crucial one.
William L. Webster was first to address the Court. He outlined the three basic areas of Missouri's statute:
He contended that legal decisions at all judicial levels since 1973 had "repeatedly interpreted that [Roe v. Wade] mandate, frequently strictly against the states. One result is that states have effectively been forbidden .. . to regulate abortion in any significant way."
Webster defended his state's law forbidding the abortion-related employment of any public facility or person on the public payroll. He argued that "the government is certainly not obligated in and of itself to become an advocate for abortion." He characterized the act's preamble--declaring that Missouri believed human life begins at conception--as "an abstract, philosophical statement of the legislature" which "doesn't affect anyone" and states should be entitled to "have a philosophical statement of when they contend life begins."
Finally, he defended Missouri's requirement that physicians perform specifictests in order to verify fetal viability. Every state has a legitimate and compelling interest, he emphasized, in the fetus, most especially when it becomes viable. Therefore, doctors should perform whatever tests are necessary toprotect unborn viable babies.
Dumping Roe
Charles Fried, arguing for the Bush administration, asked the Court to overturn Roe v. Wade. He insisted that such a ruling would not undermine Americans' other privacy rights and that legislatures and communities were entitled to frame laws based on the assumption that a fetus was a person, whetheror not the Constitution specifically addressed that question. He insisted that the Court was not being asked to "unravel the fabric of unenumerated and privacy rights which this Court has woven . . . Rather, we are asking the Courtto pull this one thread . . . Abortion is different."
Abortion means the deliberate ending of a potential life, Fried pointed out.To many legislators, it is actual life, he added, and "though we do not believe that the Fourteenth Amendment takes any position . . . it is an utter non sequitur to say that, therefore, the organized community must also take no position . . . and may not use such a position as a premise for regulation."
Kennedy asked Fried whether he thought Griswold v. Connecticut (1964),which legalized the use of contraceptives by married couples and enunciatedthe right to privacy upon which Roe was largely based, should stand. When Fried agreed that Griswold should stand, Kennedy asked if there was "a fundamental right involved in that case."
In Fried's opinion, Griswold involved a "right which was well established in a whole fabric of quite concrete matters . . . not an abstraction suchas the right to control one's body, an abstraction such as the right to be let alone; it involved quite concrete intrusions into the details of marital intimacy."
Roe Must Not Go
Reproductive Health Services attorney Frank Susman went next into the fray. He immediately attacked the very idea of a reversal of Roe: "[Fried] suggests that he does not seek to unravel the whole cloth of procreational rights, but merely to pull a thread. It has always been my personal experience that, when I pull a thread, my sleeve falls off." He argued that the contraceptive rights protected by Griswold and the abortion rights protected byRoe no longer stood apart:
Pressed by Kennedy, Susman conceded that Roe granted the state a "compelling interest . . . in potential fetal life after the point of viability,"and that this was, as Kennedy phrased it, "a line drawing." Susman said thatthe line between fetal viability and non-viability "was more easily drawn" for "many cogent reasons" than the line between the two landmark decisions.
Susman then discussed the medical safety of legalized abortion, noting that the procedure was "seventeen times safer than childbirth, 100 times safer thanappendectomy." He also noted that while 30 percent of all American pregnancies ended in abortion, the "rate has not changed one whit from the time the Constitution was enacted through the 1800s and through the 1900s." He then discussed the legal history of abortion, pointing out that it had not been a common law crime prior to its criminalization in the mid-nineteenth century.
Justice Scalia's questions also went back to Roe, and its ruling thata fetus was not a "person" within the meaning of the Constitution. Susman responded with an objection to Missouri's preamble declaring that human life began at conception, arguing that it "is not something that is verifiable as fact. It is a question verifiable only by reliance upon faith."
Activists on both sides of the abortion debate gathered to demonstrate outside the courthouse that morning, and Susman referred to them in answering Scalia:
Both Sides Now
Rehnquist announced the Court's decision. While the nine justices took eightseparate positions on some of the questions raised, five agreed that Missouri's prohibition of the use of public facilities and public employees to perform or counsel about abortion, as well as its law requiring doctors to performtests regarding fetal viability, was constitutional. The Court also permittedMissouri to retain its policy statement that human life begins at conceptionbecause the statement had no legal effect.
Roe v. Wade was not overturned, but neither was it wholeheartedly affirmed: Rehnquist, joined by Justices Kennedy and White, noted with sorrow thatthe facts presented in Webster "afford us no occasion to revisit theholding of Roe . . . [but] [t]o the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases." Justice O'Connorsaid: "When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will beenough time to examine Roe. And to do so carefully . . . " An angry Scalia responded by castigating his colleagues for their failure to use the opportunity to overturn the 1973 decision. In 1992, however, the Court firmly upheld Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey. This time the justices put respect for earlier Court decisions aheadof ideology and political pressure.
Related Cases
William L. Webster, Attorney General of Missouri, et al.
Appellees
Reproductive Health Services, et al.
Appellants' Claim
That the U.S. Court of Appeals for the Eighth Circuit erred in overturning Missouri's laws restricting access to abortions.
Chief Lawyers for Appellants
William L. Webster, representing himself pro se (without counsel)
Chief Lawyer for Appellees
Frank Susman
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Anthony M. Kennedy, Thurgood Marshall, Sandra Day O'Connor, William H. Rehnquist (writing for the Court), Antonin Scalia, John Paul Stevens, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
3 July 1989
Decision
Upheld Missouri's restrictions on access to abortion.
Significance
This decision, while not granting the Bush administration's request to overturn Roe v. Wade, upheld Missouri's restrictions on abortion and all butinvited other states to pass further restrictive legislation.
In September of 1988, Justice Blackmun, author of the 1973 landmark opinion Roe v. Wade, stunned an audience at the University of Arkansas and madenational headlines when he questioned whether abortions would remain legal in America. "Will Roe v. Wade go down the drain?" he asked bluntly. Heanswered his rhetorical question with equal bluntness: "There's a very distinct possibility that it will, this term. You can count votes."
Earlier in 1986, the Supreme Court overturned a group of restrictive state requirements in its decision in Thornburgh v. American College of Obstetricians and Gynecologists. These overturned laws included certain requirements. First, the state had to inform women about the stages of fetal development, the possibility of adoption assistance, and the risks associated with abortion. Second, the state must compile detailed public records of each woman's age, marital status, race, reason for seeking abortion, and number of prior pregnancies. Third, if there was any possibility the fetus could live outside the womb (about 23 weeks), a second doctor must be present to care for the fetus before the abortion begins--regardless of whether the delay endangers themother's life or not. Fourth, abortions of viable fetuses must be performed using whichever method offers the best chance for live birth unless that method "would present a significantly greater risk to the life or health of the mother."
The vote in Thornburgh had been a close 5-4, and Justice Powell--challenged in that case--had since retired. Anthony M. Kennedy was Powell's successor, and his views on abortion were a matter of pessimistic speculation amongabortion rights supporters. If he chose to join Thornburgh's four minority justices in a future abortion rights case, legalized abortion might disappear.
Missouri, having had a number of restrictive regulations overturned by the Supreme Court and another set upheld, passed a tough law in June of 1986. The statute began with a preamble setting forth the state legislature's "finding"that "the life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and well-being."
As Chief Justice Rehnquist summarized later, the legislation "further requires that all Missouri laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the federal Constitution and[the Supreme] Court's precedents." They also included requirements that a physician make "such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child"if the physician thought the woman might be twenty or more weeks pregnant. Further, no public facilities or employees were to assist at or perform abortions nor may public funds be used to "encourag[e] or counsel" a woman to obtain an abortion, unless her pregnancy threatened her life.
Before the end of the month, Reproductive Health Services, Planned Parenthoodof Kansas City, and five medical providers employed by Missouri challenged the act in the U.S. District Court for the Western District of Missouri. The district court issued an order restraining enforcement of much of the act, andafter a trial in December of 1986, declared the act unconstitutional. The Court of Appeals for the Eighth Circuit upheld the lower court decision two years later, and Missouri appealed to the U.S. Supreme Court.
In March of 1989, the Supreme Court agreed that the administration of President George Bush could take part in the oral argument on behalf of Missouri. The Bush administration quickly made it clear that it planned to ask for nothing less than the complete overturn of Roe v. Wade. In angry response, 300,000 demonstrators gathered in Washington, D.C., to demand that abortion remain legal.
Friends of the Court
A record-breaking 78 amicus curiae briefs were filed. That was almostdouble the 42 such briefs filed in Roe v. Wade. This was a clear indication that both sides of the abortion debate viewed the forthcoming decisionas a crucial one.
William L. Webster was first to address the Court. He outlined the three basic areas of Missouri's statute:
The first, the constitutional boundaries on the limitations of public funding; the second, the effect of and the facial constitutionality of legislation declaring that life begins at conception; and, third, the ability of a state to require a physician to perform tests and to make and record findings when determining viability.
He contended that legal decisions at all judicial levels since 1973 had "repeatedly interpreted that [Roe v. Wade] mandate, frequently strictly against the states. One result is that states have effectively been forbidden .. . to regulate abortion in any significant way."
Webster defended his state's law forbidding the abortion-related employment of any public facility or person on the public payroll. He argued that "the government is certainly not obligated in and of itself to become an advocate for abortion." He characterized the act's preamble--declaring that Missouri believed human life begins at conception--as "an abstract, philosophical statement of the legislature" which "doesn't affect anyone" and states should be entitled to "have a philosophical statement of when they contend life begins."
Finally, he defended Missouri's requirement that physicians perform specifictests in order to verify fetal viability. Every state has a legitimate and compelling interest, he emphasized, in the fetus, most especially when it becomes viable. Therefore, doctors should perform whatever tests are necessary toprotect unborn viable babies.
Dumping Roe
Charles Fried, arguing for the Bush administration, asked the Court to overturn Roe v. Wade. He insisted that such a ruling would not undermine Americans' other privacy rights and that legislatures and communities were entitled to frame laws based on the assumption that a fetus was a person, whetheror not the Constitution specifically addressed that question. He insisted that the Court was not being asked to "unravel the fabric of unenumerated and privacy rights which this Court has woven . . . Rather, we are asking the Courtto pull this one thread . . . Abortion is different."
Abortion means the deliberate ending of a potential life, Fried pointed out.To many legislators, it is actual life, he added, and "though we do not believe that the Fourteenth Amendment takes any position . . . it is an utter non sequitur to say that, therefore, the organized community must also take no position . . . and may not use such a position as a premise for regulation."
Kennedy asked Fried whether he thought Griswold v. Connecticut (1964),which legalized the use of contraceptives by married couples and enunciatedthe right to privacy upon which Roe was largely based, should stand. When Fried agreed that Griswold should stand, Kennedy asked if there was "a fundamental right involved in that case."
In Fried's opinion, Griswold involved a "right which was well established in a whole fabric of quite concrete matters . . . not an abstraction suchas the right to control one's body, an abstraction such as the right to be let alone; it involved quite concrete intrusions into the details of marital intimacy."
Roe Must Not Go
Reproductive Health Services attorney Frank Susman went next into the fray. He immediately attacked the very idea of a reversal of Roe: "[Fried] suggests that he does not seek to unravel the whole cloth of procreational rights, but merely to pull a thread. It has always been my personal experience that, when I pull a thread, my sleeve falls off." He argued that the contraceptive rights protected by Griswold and the abortion rights protected byRoe no longer stood apart:
It is not a thread he is after.It is the full range of procreational choices that constitute the fundamental right that has been recognized by this Court. For better or worse, there nolonger exists any bright line between the fundamental right that was established in Griswold and the fundamental right of abortion that was established in Roe.
Pressed by Kennedy, Susman conceded that Roe granted the state a "compelling interest . . . in potential fetal life after the point of viability,"and that this was, as Kennedy phrased it, "a line drawing." Susman said thatthe line between fetal viability and non-viability "was more easily drawn" for "many cogent reasons" than the line between the two landmark decisions.
Susman then discussed the medical safety of legalized abortion, noting that the procedure was "seventeen times safer than childbirth, 100 times safer thanappendectomy." He also noted that while 30 percent of all American pregnancies ended in abortion, the "rate has not changed one whit from the time the Constitution was enacted through the 1800s and through the 1900s." He then discussed the legal history of abortion, pointing out that it had not been a common law crime prior to its criminalization in the mid-nineteenth century.
Justice Scalia's questions also went back to Roe, and its ruling thata fetus was not a "person" within the meaning of the Constitution. Susman responded with an objection to Missouri's preamble declaring that human life began at conception, arguing that it "is not something that is verifiable as fact. It is a question verifiable only by reliance upon faith."
Activists on both sides of the abortion debate gathered to demonstrate outside the courthouse that morning, and Susman referred to them in answering Scalia:
The very debate that went on outside this morning, outside this building, and has gone on in various towns and communities across our nation, is the same debate that every woman who becomes pregnant and doesn't wishto be pregnant has with herself.
Women do not make these decisions lightly. They agonize over them. . . The very fact that it is so contested is one of those things that makes me believe that it must remain as a fundamental right with the individual and that the state legislatures have no business invading this decision.
Both Sides Now
Rehnquist announced the Court's decision. While the nine justices took eightseparate positions on some of the questions raised, five agreed that Missouri's prohibition of the use of public facilities and public employees to perform or counsel about abortion, as well as its law requiring doctors to performtests regarding fetal viability, was constitutional. The Court also permittedMissouri to retain its policy statement that human life begins at conceptionbecause the statement had no legal effect.
Roe v. Wade was not overturned, but neither was it wholeheartedly affirmed: Rehnquist, joined by Justices Kennedy and White, noted with sorrow thatthe facts presented in Webster "afford us no occasion to revisit theholding of Roe . . . [but] [t]o the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases." Justice O'Connorsaid: "When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will beenough time to examine Roe. And to do so carefully . . . " An angry Scalia responded by castigating his colleagues for their failure to use the opportunity to overturn the 1973 decision. In 1992, however, the Court firmly upheld Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey. This time the justices put respect for earlier Court decisions aheadof ideology and political pressure.
Related Cases
- Griswold v. Connecticut, 381 U.S. 479 (1965).
- Roe v. Wade, 410 U.S. 113 (1973).
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.883 (1992).
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