Webster v. Reproductive Health Services

This decision, while not granting the Bush administration's request to overturn Roe v. Wade, upheld Missouri's restrictions on abortion and all but invited 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 made national headlines when he questioned whether abortions would remain legal in America. "Will Roe v. Wade go down the drain?" he asked bluntly. He answered 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 the mother'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 among abortion 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 Parenthood of 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, and after 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.