Webster v. Reproductive Health Services (1989)
Webster v. Reproductive Health Services (1989)
492 U.S. 490
Reproductive Health Services, state-employed health professionals, and private nonprofit corporations providing abortion services brought suit against William L. Webster, Attorney General of Missouri, in the U.S. District Court for the Western District of Missouri. They sought declaratory and injunctive relief, challenging the constitutionality of a Missouri abortion statute. The statute set forth “findings” in its preamble that the “life of each human being begins at conception” and that “unborn children have protectable interests in life, health, and well-being.”It specified that physicians, prior to performing an abortion on any woman whom they have reason to believe is 20 or more weeks pregnant, must ascertain whether the fetus is “viable” by performing “such medical examinations and tests as are necessary to make a finding of [the fetus’s] gestational age, weight, and lung maturity.” It also prohibited the use of public employees and facilities to perform or assist abortions not necessary to save the mother’s life. The District Court struck down the statute and enjoined its enforcement. The Court of Appeals for the Eighth Circuit affirmed, ruling that the statute violated the Supreme Court decisions in Roe v. Wade and subsequent cases.
Judgment of the Court: Rehnquist, White, Kennedy.
Concurring in part and concurring in the judgment: O’Connor; Scalia.
Concurring in part and dissenting in part: Blackmun, Brennan, Marshall; Stevens.
Chief Justice Rehnquist announced the judgment of the Court.
. . . Decision of this case requires us to address the [Missouri statute’s] preamble; . . . the prohibition on the use of public facilities or employees to perform abortions; . . . and . . . the requirement that physicians conduct viability tests prior to performing abortions. We address these seriatim. . . .
The Act’s preamble, as noted, sets forth “findings” by the Missouri legislature that “[t]he life of each human being begins at conception,” and that “[u]nborn children have protectable interests in life, health, and well-being.” . . . The Act then mandates that state laws be interpreted to provide unborn children with “all the rights, privileges, and immunities available to other persons, citizens, and residents of this state,” subject to the Constitution and this Court’s precedents. . . . In invalidating the preamble, the Court of Appeals relied on this Court’s dictum that “a State may not adopt one theory of when life begins to justify its regulation of abortions.” Akron v. Akron Center for Reproductive Health, Inc. (1983). . . .
In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not “justify” an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State’s view about when life begins. Certainly the preamble does not by its terms regulate abortion or any other aspect of appellees’ medical practice. 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. It will be time enough for federal courts to address the meaning of the preamble should it be applied to restrict the activities of appellees in some concrete way. Until then, this Court “is not empowered to decide . . . abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it.” . . .
Section 188.210 provides that “[i]t shall be unlawful for any public employee within the scope of his employment to perform or assist an abortion, not necessary to save the life of the mother,” while 188.215 makes it “unlawful for any public facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother.” The Court of Appeals held that these provisions contravened this Court’s abortion decisions. . . . We take the contrary view. . . .
In Harris v. McRae (1980), the Court upheld “the most restrictive version of the Hyde Amendment,” . . . which withheld from States federal funds under the Medicaid program to reimburse the costs of abortions, ” “except where the life of the mother would be endangered if the fetus were carried to term.’ ” . . . Just as Congress’ refusal to fund abortions in McRae left “an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all,” . . . Missouri’s refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all. The challenged provisions only restrict a woman’s ability to obtain an abortion to the extent that she chooses to use a physician affiliated with a public hospital. . . .
Having held that the State’s refusal to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use of public facilities and employees. If the State may “make a value judgment favoring childbirth over abortion and . . . implement that judgment by the allocation of public funds,” . . . surely it may do so through the allocation of other public resources, such as hospitals and medical staff. . . .
Section 188.029 of the Missouri Act provides: “Before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viability in the medical record of the mother.”
As with the preamble, the parties disagree over the meaning of this statutory provision. The State emphasizes the language of the first sentence, which speaks in terms of the physician’s determination of viability being made by the standards of ordinary skill in the medical profession. Appellees stress the language of the second sentence, which prescribes such “tests as are necessary” to make a finding of gestational age, fetal weight, and lung maturity.
The viability-testing provision of the Missouri Act is concerned with promoting the State’s interest in potential human life rather than in maternal health. Section 188.029 creates what is essentially a presumption of viability at 20 weeks, which the physician must rebut with tests indicating that the fetus is not viable prior to performing an abortion. It also directs the physician’s determination as to viability by specifying consideration, if feasible, of gestational age, fetal weight, and lung capacity. The District Court found that “the medical evidence is uncontradicted that a 20-week fetus is not viable,” and that “23 1/2 to 24 weeks gestation is the earliest point in pregnancy where a reasonable possibility of viability exists.” . . . But it also found that there may be a 4-week error in estimating gestational age, which supports testing at 20 weeks. . . . We think that the doubt cast upon the Missouri statute . . . is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in . . . making constitutional law in this area a virtual Procrustean bed. . . .
Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. . . . We have not refrained from reconsideration of a prior construction of the Constitution that has proved “unsound in principle and unworkable in practice.” . . . We think the Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework-trimesters and viability-are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. As Justice White has put it, the trimester framework has left this Court to serve as the country’s “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.” . . . In the second place, we do not see why the State’s interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. . . .
The tests that 188.029 requires the physician to perform are designed to determine viability. The State here has chosen viability as the point at which its interest in potential human life must be safeguarded. . . . It is true that the tests in question increase the expense of abortion, and regulate the discretion of the physician in determining the viability of the fetus. Since the tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were in fact second-trimester abortions. But 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 dissent takes us to task for our failure to join in a “great issues” debate as to whether the Constitution includes an “unenumerated” general right to privacy as recognized in cases such as Griswold v. Connecticut (1965), and Roe. . . . Roe v. Wade . . . sought to establish a constitutional framework for judging state regulation of abortion during the entire term of pregnancy. That framework sought to deal with areas of medical practice traditionally subject to state regulation, and it sought to balance once and for all by reference only to the calendar the claims of the State to protect the fetus as a form of human life against the claims of a woman to decide for herself whether or not to abort a fetus she was carrying. The experience of the Court in applying Roe v. Wade in later cases . . . suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a “fundamental right” to abortion, . . . a “limited fundamental constitutional right,” which Justice Blackmun’s dissent today treats Roe as having established, . . . or a liberty interest protected by the Due Process Clause, which we believe it to be. The Missouri testing requirement here is reasonably designed to ensure that abortions are not performed where the fetus is viable-an end which all concede is legitimate-and that is sufficient to sustain its constitutionality.
. . . The dissent also accuses us, inter alia, of cowardice and illegitimacy in dealing with “the most politically divisive domestic legal issue of our time.” . . .
But the goal of constitutional adjudication is surely not to remove inexorably “politically divisive” issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them. The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. We think we have done that today. The dissent’s suggestion . . . that legislative bodies, in a Nation where more than half of our population is women, will treat our decision today as an invitation to enact abortion regulation reminiscent of the dark ages not only misreads our views but does scant justice to those who serve in such bodies and the people who elect them. Both appellants and the United States as Amicus Curiae have urged that we overrule our decision in Roe v. Wade . . . The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother’s life was at stake. . . . This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, . . . and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.
Because none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution, the judgment of the Court of Appeals is Reversed.
Justice O’Connor, concurring in part and concurring in the judgment.
. . . In its interpretation of Missouri’s “determination of viability” provision, . . . the plurality has proceeded in a manner unnecessary to deciding the question at hand. . . .
Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court’s past decisions concerning state regulation of abortion. Therefore, there is no necessity to accept the State’s invitation to reexamine the constitutional validity of Roe v. Wade. . . . Where there is no need to decide a constitutional question, it is a venerable principle of this Court’s adjudicatory processes not to do so for “[t]he Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.’ ” Ashwander v. TVA (1936) (Brandeis, J., concurring). Neither will it generally “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” . . . Quite simply, “[i]t is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” . . . The Court today has accepted the State’s every interpretation of its abortion statute and has upheld, under our existing precedents, every provision of that statute which is properly before us. Precisely for this reason reconsideration of Roe falls not into any “good-cause exception” to this “fundamental rule of judicial restraint. . . .” . . . When the constitutional invalidity of a State’s abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully. . . .
Justice Scalia, concurring in part and concurring in the judgment.
. . . The outcome of today’s case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court’s self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not juridical-a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.
Justice O’Connor’s assertion . . . that a “fundamental rule of judicial restraint” requires us to avoid reconsidering Roe, cannot be taken seriously. By finessing Roe we do not, as she suggests, . . . adhere to the strict and venerable rule that we should avoid “decid[ing] questions of a constitutional nature.” We have not disposed of this case on some statutory or procedural ground, but have decided, and could not avoid deciding, whether the Missouri statute meets the requirements of the United States Constitution. The only choice available is whether, in deciding that constitutional question, we should use Roe v. Wade as the benchmark, or something else. What is involved, therefore, is not the rule of avoiding constitutional issues where possible, but the quite separate principle that we will not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” . . . The latter is a sound general principle, but one often departed from when good reason exists. . . .
I have not identified with certainty the first instance of our deciding a case on broader constitutional grounds than absolutely necessary, but it is assuredly no later than Marbury v. Madison, . . . (1803), where we held that mandamus could constitutionally issue against the Secretary of State, although that was unnecessary given our holding that the law authorizing issuance of the mandamus by this Court was unconstitutional. . . .
The real question, then, is whether there are valid reasons to go beyond the most stingy possible holding today. It seems to me there are not only valid but compelling ones. Ordinarily, speaking no more broadly than is absolutely required avoids throwing settled law into confusion; doing so today preserves a chaos that is evident to anyone who can read and count. Alone sufficient to justify a broad holding is the fact that our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us-their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will-to follow the popular will. Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today. And if these reasons for taking the unexceptional course of reaching a broader holding are not enough, then consider the nature of the constitutional question we avoid: In most cases, we do no harm by not speaking more broadly than the decision requires. Anyone affected by the conduct that the avoided holding would have prohibited will be able to challenge it himself, and have his day in court to make the argument. Not so with respect to the harm that many States believed, pre-Roe, and many may continue to believe, is caused by largely unrestricted abortion. That will continue to occur if the States have the constitutional power to prohibit it, and would do so, but we skillfully avoid telling them so. Perhaps those abortions cannot constitutionally be proscribed.
That is surely an arguable question, the question that reconsideration of Roe v. Wade entails. But what is not at all arguable, it seems to me, is that we should decide now and not insist that we be run into a corner before we grudgingly yield up our judgment. The only sound reason for the latter course is to prevent a change in the law-but to think that desirable begs the question to be decided. . .
The result of our vote today is that we will not reconsider that prior opinion, even if most of the Justices think it is wrong, unless we have before us a statute that in fact contradicts it-and even then (under our newly discovered “no-broader-than-necessary” requirement) only minor problematical aspects of Roe will be reconsidered, unless one expects State legislatures to adopt provisions whose compliance with Roe cannot even be argued with a straight face. It thus appears that the mansion of constitutionalized abortion-law, constructed overnight in Roe v. Wade, must be disassembled door-jamb by door-jamb, and never entirely brought down, no matter how wrong it may be.
Of the four courses we might have chosen today-to reaffirm Roe, to overrule it explicitly, to overrule it sub silentio, or to avoid the question-the last is the least responsible. On the question of the constitutionality of 188.029, I concur in the judgment of the Court and strongly dissent from the manner in which it has been reached.
Justice Blackmun, with whom Justice Brennan and Justice Marshall join, concurring in part and dissenting in part.
Today, Roe v. Wade (1973), and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive but are not secure. Although the Court extricates itself from this case without making a single, even incremental, change in the law of abortion, the plurality and Justice Scalia would overrule Roe (the first silently, the other explicitly) and would return to the States virtually unfettered authority to control the quintessentially intimate, personal, and life-directing decision whether to carry a fetus to term. Although today, no less than yesterday, the Constitution and the decisions of this Court prohibit a State from enacting laws that inhibit women from the meaningful exercise of that right, a plurality of this Court implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that sometime down the line the Court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22, 1973. Never in my memory has a plurality announced a judgment of this Court that so foments disregard for the law and for our standing decisions.
Nor in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute, to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe “undisturbed,” albeit “modif[ied] and narrow[ed].” . . . But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman’s right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality’s analysis, and that the plurality provides no substitute for Roe‘s protective umbrella.
I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court. I dissent.
. . . Tucked away at the end of its opinion, the plurality suggests a radical reversal of the law of abortion; and there, primarily, I direct my attention.
In the plurality’s view, the viability-testing provision imposes a burden on second-trimester abortions as a way of furthering the State’s interest in protecting the potential life of the fetus. Since under the Roe framework, the State may not fully regulate abortion in the interest of potential life (as opposed to maternal health) until the third trimester, the plurality finds it necessary, in order to save the Missouri testing provision, to throw out Roe‘s trimester framework. . . . In flat contradiction to Roe, the plurality concludes that the State’s interest in potential life is compelling before viability, and upholds the testing provision because it “permissibly furthers” that state interest. . . .
The statute’s plain language requires the physician to undertake whatever tests are necessary to determine gestational age, weight, and lung maturity, regardless of whether these tests are necessary to a finding of viability, and regardless of whether the tests subject the pregnant woman or the fetus to additional health risks or add substantially to the cost of an abortion. Had the plurality read the statute as written, it would have had no cause to reconsider the Roe framework. As properly construed, the viability-testing provision does not pass constitutional muster under even a rational-basis standard, the least restrictive level of review applied by this Court. . . .
By mandating tests to determine fetal weight and lung maturity for every fetus thought to be more than 20 weeks gestational age, the statute requires physicians to undertake procedures, such as amniocentesis, that, in the situation presented, have no medical justification, impose significant additional health risks on both the pregnant woman and the fetus, and bear no rational relation to the State’s interest in protecting fetal life.
As written, 188.029 is an arbitrary imposition of discomfort, risk, and expense, furthering no discernible interest except to make the procurement of an abortion as arduous and difficult as possible. Thus, were it not for the plurality’s tortured effort to avoid the plain import of 188.029, it could have struck down the testing provision as patently irrational irrespective of the Roe framework. . . .
Having contrived an opportunity to reconsider the Roe framework, and then having discarded that framework, the plurality finds the testing provision unobjectionable because it “permissibly furthers the State’s interest in protecting potential human life.” . . . This newly minted standard is circular and totally meaningless. Whether a challenged abortion regulation “permissibly furthers” a legitimate state interest is the question that courts must answer in abortion cases, not the standard for courts to apply.
In keeping with the rest of its opinion, the plurality makes no attempt to explain or to justify its new standard, either in the abstract or as applied in this case. Nor could it. The “permissibly furthers” standard has no independent meaning, and consists of nothing other than what a majority of this Court may believe at any given moment in any given case. The plurality’s novel test appears to be nothing more than a dressed-up version of rational-basis review, this Court’s most lenient level of scrutiny. One thing is clear, however: were the plurality’s “permissibly furthers” standard adopted by the Court, for all practical purposes, Roe would be overruled.
The “permissibly furthers” standard completely disregards the irreducible minimum of Roe: the Court’s recognition that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy. That right receives no meaningful recognition in the plurality’s written opinion.
Since, in the plurality’s view, the State’s interest in potential life is compelling as of the moment of conception, and is therefore served only if abortion is abolished, every hindrance to a woman’s ability to obtain an abortion must be “permissible.” Indeed, the more severe the hindrance, the more effectively (and permissibly) the State’s interest would be furthered. A tax on abortions or a criminal prohibition would both satisfy the plurality’s standard. So, for that matter, would a requirement that a pregnant woman memorize and recite today’s plurality opinion before seeking an abortion. The plurality pretends that Roe survives. Explaining that the facts of this case differ from those in Roe: here, Missouri has chosen to assert its interest in potential life only at the point of viability, whereas, in Roe, Texas had asserted that interest from the point of conception, criminalizing all abortions, except where the life of the mother was at stake. . . . This, of course, is a distinction without a difference.
The plurality repudiates every principle for which Roe stands; in good conscience, it cannot possibly believe that Roe lies “undisturbed” merely because this case does not call upon the Court to reconsider the Texas statute, or one like it. If the Constitution permits a State to enact any statute that reasonably furthers its interest in potential life, and if that interest arises as of conception, why would the Texas statute fail to pass muster? One suspects that the plurality opinion agrees. It is impossible to read the plurality opinion and especially its final paragraph, without recognizing its implicit invitation to every State to enact more and more restrictive abortion laws, and to assert their interest in potential life as of the moment of conception. All these laws will satisfy the plurality’s non-scrutiny, until sometime, a new regime of old dissenters and new appointees will declare what the plurality intends: that Roe is no longer good law.
Thus, “not with a bang, but a whimper,” the plurality discards a landmark case of the last generation, and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children. The plurality does so either oblivious or insensitive to the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life. The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term. The plurality would clear the way again for the State to conscript a woman’s body and to force upon her a “distressful life and future.” . . .
Of the aspirations and settled understandings of American women, of the inevitable and brutal consequences of what it is doing, the tough-approach plurality utters not a word. This silence is callous. It is also profoundly destructive of this Court as an institution. To overturn a constitutional decision is a rare and grave undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history. . . .
For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows. I dissent.
Justice Stevens, concurring in part and dissenting in part.
. . . The Missouri statute defines “conception” as “the fertilization of the ovum of a female by a sperm of a male,” . . . even though standard medical texts equate “conception” with implantation in the uterus, occurring about six days after fertilization. Missouri’s declaration therefore implies regulation not only of previability abortions, but also of common forms of contraception such as the IUD and the morning-after pill. Because the preamble, read in context, threatens serious encroachments upon the liberty of the pregnant woman and the health professional, I am persuaded that these plaintiffs, appellees before us, have standing to challenge its constitutionality. To the extent that the Missouri statute interferes with contraceptive choices, I have no doubt that it is unconstitutional. . . .
Because I am not aware of any secular basis for differentiating between contraceptive procedures that are effective immediately before and those that are effective immediately after fertilization, I believe it inescapably follows that the preamble to the Missouri statue is invalid under Griswold and its progeny.
Indeed, I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution. . . .
Bolstering my conclusion that the preamble violates the First Amendment is the fact that the intensely divisive character of much of the national debate over the abortion issue reflects the deeply held religious convictions of many participants in the debate. The Missouri Legislature may not inject its endorsement of a particular religious tradition into this debate, for “[t]he Establishment Clause does not allow public bodies to foment such disagreement.”