Webster v. Reproductive Health Services

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 by Roe 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 no longer 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 that the 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 than appendectomy." 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 that a 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 wish to 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.