Sandra Day O’Connor: Opinion in Webster v. Reproductive Health Services

(1989)

Document Text

O’Connor’s Concurrence

The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.

The 20-week presumption of viability in the first sentence of § 188.029, it could be argued (though, I would think, unsuccessfully), restricts “the judgment of the responsible attending physician,” by imposing on that physician the burden of overcoming the presumption. This presumption may be a “superimpos[ition] [of] state regulation on the medical determination whether a particular fetus is viable,” but, if so, it is a restriction on the physician’s judgment that is not before us. As the plurality properly interprets the second sentence of § 188.029, it does nothing more than delineate means by which the unchallenged 20-week presumption of viability may be overcome if those means are useful in doing so and can be prudently employed....

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Sandra Day O'Connor (Library of Congress)

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