Webster v. Reproductive Health Services

492 U.S. 490

Case Year: 1989

Case Ruling: 5-4, Reversed

Opinion Justice: Rehnquist

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Kennedy, O'Connor, Scalia, White


1st Concurring Opinion

Author: O'Connor


1st Dissenting Opinion

Author: Blackmun in Part

Joiner(s): Brennan, Marshall

2nd Concurring Opinion

Author: Scalia


2nd Dissenting Opinion



3rd Concurring Opinion

Author: Blackmun in Part

Joiner(s): Stevens

3rd Dissenting Opinion



Other Concurring Opinions:


Although prochoice advocates won several major cases in the 1980s, they were steadily losing ground. Diminishing support for Roe was widely acknowledged in the press and noted by legislative bodies. It was evident in 1987, when prochoice forces (among many others) rallied to oppose President Reagan's nomination of Robert Bork, an avowed Roeopponent, to replace Justice Powell. Prochoice advocates, along with the members of the Senate, realized that Bork's appointment to the Court could tip the balance between maintaining Roe and overruling it. Undoubtedly, Bork's position on abortion, coupled with many of his other controversial stances, contributed to his defeat.

Even with Bork's rejection, prochoice forces were concerned when the Rehnquist Court agreed to hear Webster v. Reproductive Health Services, a new challenge to Roe. By that time, the Senate had confirmed Powell's replacement, Anthony Kennedy, whose views on abortion were not known. Moreover, Justice Rehnquist, a persistent critic, had been elevated to chief justice, with Reagan appointee Antonin Scalia taking his place. These changes led many observers to conclude that Webster would be a major ruling on abortion.

The possibility that Webster would reverse Roe was not lost on prochoice and prolife forces, who filed seventy-eight amicus curiae briefs (the largest number ever submitted to the Court in a single case), representing more than five thousand individual groups and interests. The solicitor general for the first George Bush administration not only filed a brief supporting state regulation of abortions but also participated in oral arguments, again requesting the Court to overrule Roe.

With legal assistance from Planned Parenthood and the ACLU, Reproductive Health Services, an abortion counseling facility, challenged numerous provisions of a 1986 Missouri law regulating abortions. They were:

1. The law's preamble, which stated that "the life of each human being begins at the moment of conception" and "unborn children have protectable interests in life, health, and well being."

2. A prohibition on the ability of public employees to "perform or assist in abortion, not necessary to save the life of the mother" (§188.210). Nor can "any public facility ... be used to perform an abortion not necessary to save the life of the mother," even if no public monies are expended.

3. Prohibitions relating to "encouraging or counseling a woman to have an abortion not necessary to save her life." Section 188.210 prohibits public employees in engaging in such speech; §188.215 bars such speech in public facilities; and §188.205 disallows the use of public funds for such speech.

4. The requirement that "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 first determine if the unborn child is viable.... In making this determination, the physician shall perform or cause to be performed such medical examinations and [viability] tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child." (§188.029).

A U.S. district court struck down most of the act's provisions as violative of Roe, and the court of appeals affirmed. Missouri appealed to the U.S. Supreme Court, and, in its briefs, asserted that Roe's trimester scheme is "inherently flawed" because the "State has a compelling interest in protecting life through all stages of the pregnancy." Relying on dissents by O'Connor, Rehnquist, and White in earlier abortion cases, the intent of the Framers of the Constitution, and medical evidence, Missouri asked the Court to "abandon" Roe, a position the solicitor general also pressed. Alternatively, should the Court not be ready to overrule Roe, the state argued that it should adopt O'Connor's unduly burdensome approach.

Attorneys for Reproductive Health Services took precisely the opposite position, asking the Court to apply Roe to find against the law. In their view, Missouri was attempting to regulate abortions prior to viability, when Roe said that the state lacks a compelling interest in regulating abortions prior to that time. If the Court adopts Missouri's argument, they maintained, there will be no legal distinction between a "freshly fertilized egg" and a nine-month-old fetus. In other words, the state will be free to regulate abortions at any stage of the pregnancy in direct contradiction to the precepts of Roe.



[I omitted]


... 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 appellee's 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.

We think the extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the courts of Missouri can definitively decide.... It will be time enough for federal courts to address the meaning of the preamble should it be applied to restrict the activities of appellee 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."... We therefore need not pass on the constitutionality of the Act's preamble.


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....

Maher [v. Roe, 1977], Poelker [ v. Doe, 1977], and [ Harris v. ] McRae [1980] all support the view that the State need not commit any resources to facilitating abortions, even if it can turn a profit by doing so. In Poelker, the suit was filed by an indigent who could not afford to pay for an abortion, but the ban on the performance of nontherapeutic abortions in city-owned hospitals applied whether or not the pregnant woman could pay.... The Court emphasized that the Mayor's decision to prohibit abortions in city hospitals was "subject to public debate and approval or disapproval at the polls," and that "the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done."... Thus we uphold the Act's restrictions on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions.


[In this section, Rehnquist discusses Missouri's prohibitions relating to "encouraging or counseling a woman to have an abortion not necessary to save her life." The State chose not to appeal §188.210 (prohibiting public employees in engaging in such speech) or §188.215 (barring such speech in public facilities). Using the same logic he applied to the state's bans on the use of public facilities or employees to perform abortions, he upheld the one section it did appeal (§188.205 disallowing the use of public funds for such speech).]


... 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....

In Roe v. Wade, the Court recognized that the State has "important and legitimate" interests in protecting maternal health and in the potentiality of human life. During the second trimester, the State "may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health."... After viability, when the State's interest in potential human life was held to become compelling, the State "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."...

... To the extent that §188.029 regulates the method for determining viability, it undoubtedly does superimpose state regulation on the medical determination of whether a particular fetus is viable. The Court of Appeals and the District Court thought it unconstitutional for this reason.... To the extent that the viability tests increase the cost of what are in fact second-trimester abortions, their validity may also be questioned....

We think that the doubt cast upon the Missouri statute by these cases 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 subsequent cases like Colautti [ v. Franklin, 1979] ... 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 trimester framework falls into that category.

In the first place, the rigid 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 dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the "fundamental right" recognized in Roe the State's "compelling interest" in protecting potential human life throughout pregnancy....

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. ButGriswold v. Connecticut, unlike Roe, did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. As such, it was far different from the opinion, if not the holding, of Roe v. Wade, which 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 ... of cowardice and illegitimacy in dealing with "the most politically divisive domestic legal issue of our time."... There is no doubt that our holding today will allow some governmental regulation of abortion that would have been prohibited.... 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



I concur in Parts I, II-A, II-B, and II-C of the Court's opinion.

[I omitted]


... Unlike the plurality, I do not understand [the] 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 (1973). 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.'"... 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....

... I dissented from the Court's opinion in Akron because it was my view that, even apart from Roe's trimester framework which I continue to consider problematic, ... the Akron majority had distorted and misapplied its own standard for evaluating state regulation of abortion which the Court had applied with fair consistency in the past: that, previability, "a regulation imposed on a lawful abortion is not unconstitutional unless it unduly burdens the right to seek an abortion."...

It is clear to me that 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. On this ground alone I would reject the suggestion that §188.029 as interpreted is unconstitutional.... [T]he cost of 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....


I join Parts I, II-A, II-B, and II-C of the opinion of THE CHIEF JUSTICE. As to Part II-D, I share JUSTICE BLACKMUN's view that it effectively would overrule Roe v. Wade (1973). I think that should be done, but would do it more explicitly. Since today we contrive to avoid doing it, and indeed to avoid almost any decision of national import, I need not set forth my reasons, some of which have been well recited in dissents of my colleagues in other cases....

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 Roecannot 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 useRoe 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 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....

... The result of our vote today is that we will not reconsider ... [ Roe], 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.... I concur in the judgment of the Court and strongly dissent from the manner in which it has been reached.


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.

[I-A omitted]


Having set up the conflict between §188.029 and the Roetrimester framework, the plurality summarily discards Roe's analytic core as "'unsound in principle and unworkable in practice.'"... This is so, the plurality claims, because the key elements of the framework do not appear in the text of the Constitution, because the framework more closely resembles a regulatory code than a body of constitutional doctrine, and because under the framework the State's interest in potential human life is considered compelling only after viability, when, in fact, that interest is equally compelling throughout pregnancy.... The plurality does not bother to explain these alleged flaws in Roe. Bald assertion masquerades as reasoning. The object, quite clearly, is not to persuade, but to prevail....


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 Roelies "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 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: thatRoe 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."...

The result, as we know from experience, ... would be that every year hundreds of thousands of women, in desperation, would defy the law, and place their health and safety in the unclean and unsympathetic hands of back-alley abortionists, or they would attempt to perform abortions upon themselves, with disastrous results. Every year, many women, especially poor and minority women, would die or suffer debilitating physical trauma, all in the name of enforced morality or religious dictates or lack of compassion, as it may be.

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....

This comes at a cost. The doctrine of stare decisis "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact."... Today's decision involves the most politically divisive domestic legal issue of our time. By refusing to explain or to justify its proposed revolutionary revision in the law of abortion, and by refusing to abide not only by our precedents, but also by our canons for reconsidering those precedents, the plurality invites charges of cowardice and illegitimacy to our door. I cannot say that these would be undeserved.


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.