Webster v. Reproductive Health Services

Explanation and Analysis of the Document

William Rehnquist: Majority Opinion

Chief Justice William Rehnquist wrote the decision for the majority, but the Court’s decision was a complicated one, with various justices writing dissents or concurrences—and in some cases both—with respect to various portions of the majority opinion. Section I of Rehnquist’s majority opinion, like the opening section of most Supreme Court decisions, reviews the history of the case: who the litigants were, what the constitutional issues were, and how the case had found its way to the Supreme Court. Section II gets to the heart of the matter by taking up the issues the case raises: the preamble of the Missouri act, the prohibition on the use of public facilities to perform abortions and on the use of public funds for abortion counseling, and the requirement that doctors determine the viability of a fetus before performing an abortion.

Essentially, the Court reversed the decision of the Court of Appeals, ruling that the Missouri law was valid because it did not violate the due process clause of the Fourteenth Amendment to the Constitution (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”) Specially, the majority ruled that the law’s preamble was not unconstitutional because it was not used to justify any regulations or restrictions on abortions, stating: “The Court has emphasized that Roe v. Wade ‘implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion.’ The preamble can be read simply to express that sort of value judgment.” Moreover, prohibiting the use of state facilities, funds, or employees was not seen as inconsistent with any of the Court’s previous abortion rulings because no one had an “affirmative right” to state aid to have an abortion: “The State’s decision here to use public facilities and staff to encourage childbirth over abortion ‘places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.’”

Finally, the Court ruled that the law’s provisions requiring doctors to perform tests to determine the viability of a fetus after twenty weeks of pregnancy were constitutional. Rehnquist wrote: “We are satisfied that the requirement of these tests permissibly furthers the State’s interest in protecting potential human life, and we therefore believe § 188.029 to be constitutional.” The Court did, however, judge that limits on abortion that encompassed the entire second trimester of a pregnancy violated constitutional rights. In a final section, the Court left “undisturbed” its decision in Roe v. Wade.

Sandra Day O’Connor: Concurrence

O’Connor voted with the majority, but in addition to Rehnquist’s opinion for the Court she wrote her own concurrence, aligning with various portions of the decision. Her concurrence in Webster provides an example of her closely reasoned opinions and, perhaps more important, her painstaking efforts to square any given decision with previous Court rulings. In the section of her concurrence reproduced here, she takes up the issue of the viability of a fetus and the question of whether “the State may … directly promote its interest in potential life when viability is possible.” Put simply, the Missouri law under examination in this case placed restrictions on abortion by requiring physicians to perform tests to determine whether a fetus could survive outside the womb; if it could, then physicians could not legally abort it. The parties who contested the law argued that such a requirement places an undue burden on a woman seeking an abortion, principally by increasing the cost because of the additional tests. O’Connor contends that this burden is not excessive.

O’Connor first takes up the presumption of the Missouri law that a twenty-week-old fetus may be viable. She notes that the law’s requirement that tests for viability be performed from that point onward by any woman seeking an abortion is not intended to substitute state regulation for a physician’s judgment, as the court of appeals held. Rather, the provision in the Missouri law, O’Connor maintains, is merely a means to enable the presumption of viability at twenty weeks to be overcome. O’Connor goes on to argue that the Missouri law and the Court’s upholding of it are not in any way inconsistent with prior Court rulings. In this discussion, she cites two important cases in the history of abortion rights: Thornburgh v. American College of Obstetricians and Gynecologists (1986) and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft (1983). O’Connor points out that in these cases, the Court upheld the principle that a state has a legitimate interest in “potential life” when “viability is certain”; she notes that in Thornburgh the Court struck down a Pennsylvania law only because the law failed to take into account emergency circumstances, not because the Court rejected the principle.

O’Connor proceeds to cite Colautti v. Franklin, a 1979 case that overturned a state law attempting to discourage abortion, one of a number of such laws passed in the wake of Roe v. Wade. Quoting the Court’s decision in Colautti, O’Connor affirms that “Missouri has not substituted any of the ‘elements entering into the ascertainment of viability’ as ‘the determinant of when the State has a compelling interest in the life or health of the fetus.’” In other words, viability—and thus the legality of a possible abortion—are still determined by the doctor rather than the state, and as such the Court’s present ruling is consistent with the Colautti ruling.

A key issue in the abortion debate concerned the question of whether a state could burden a pregnant woman’s decision to have an abortion by, for example, increasing its cost or requiring a hospital stay. With respect to the Missouri law, O’Connor dismisses the objection to the added cost of testing as invalid: “Requiring the performance of examinations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be medically imprudent to do so, does not impose an undue burden on a woman’s abortion decision.” She distinguishes Webster from an earlier case, Akron v. Akron Center for Reproductive Health, Inc., by noting that the latter case dealt with a requirement that a woman having an abortion at any time during the second trimester had to be hospitalized. This, in O’Connor’s view, was an unreasonable burden. In contrast, the Missouri law, requiring “examinations and tests that could usefully and prudently be performed when a woman is 20–24 weeks pregnant to determine whether the fetus is viable would only marginally, if at all, increase the cost of an abortion.” Thus, the law does not unduly burden the pregnant woman

O’Connor further notes that a fetus is not viable during much of the second trimester of pregnancy. (Conventionally, pregnancy is divided into three stages. The first is from conception to twelve weeks, when a fetus is clearly not viable. The second stage extends from the thirteenth through the twenty-eighth week. It is during the second trimester, generally between the twentieth and twenty-fourth weeks, that a fetus becomes viable.) Consequently, requiring tests for viability in weeks twenty through twenty-four is not the same as requiring a hospital stay at any time during the second trimester. On the basis of these arguments, O’Connor concludes that the Court’s decision in Webster, contrary to the findings of the lower courts, is consistent with the Court’s rulings in earlier cases. It is on this basis that she voted to reverse the judgment of the court of appeals and uphold the Missouri law.