Abortion: From Roe to Webster

The Catholic Lawyer, Oct 2017

By Phillip A. Smith, Published on 10/12/17

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Abortion: From Roe to Webster

Abortion: From Roe to Webster Phillip A. Smith Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Constitutional Law Commons Recommended Citation - Article 4 On July 3, 1989, the Supreme Court ended months of intense speculation by handing down Webster v. Reproductive Health Services.' In this decision, the Court curtailed the right to terminate a pregnancy but stopped short of reversing its historic Roe v. Wade2 ruling. Webster was undoubtedly one of the most highly publicized and controversial rulings of the century. From the time the Court agreed to hear the case, abortion opponents and supporters alike engaged in an anguished and bitter effort to capture public opinion and to influence the Supreme Court itself. Given the intense level of anticipation while awaiting Webster, it was not surprising that the reactions to the decision were swift, emotional, and predictable. The immediate responses ran the gamut from jubilant claims that the decision marked the first step toward a complete reversal of Roe v. Wade to angry accusations that it undermined the right to abortion and endangered the autonomy of women. The purpose of this Article is to trace the development of the Court's abortion doctrine from its original opinion to its most recent. Since the Roe decision was the benchmark for all subsequent abortion rulings, I will begin with a brief overview of its framework. I. THE Roe FRAMEWORK In its famous Roe v. Wade abortion ruling over sixteen years ago, the Supreme Court declared that a woman's constitutional right to privacy was broad enough to include the decision to terminate her pregnancy. This right to abortion was a qualified right which had to be balanced against competing state interests.3 In the matter of abortion, the state could have only two legitimate interests: maternal health and fetal life. In order to define the scope and limits of state regulation of these two intert This article is republished in substantial part from No. 102/103 LAW & JUSTICE 6 (1989). 109 S. Ct. 3040 (1989). 410 U.S. 113 (1973). Id. at 154. ests, the Court set up guidelines that established different standards for the different stages of pregnancy. During the first trimester, when abortion was safer than childbirth, the state could not show any interest compelling enough to impose any restrictions on abortion. The decision belonged solely to the woman and her physician. From the end of the first trimester until viability, the state could regulate abortion, but only with an eye to maternal health. Here, the Court assumed that after the twelfth week of pregnancy abortion posed a greater risk to maternal health than did childbirth. At viability, the fetus acquired the "capability of meaningful life"" outside the womb. Then the state's interest in protecting fetal life became compelling enough for the state to regulate or even ban abortion, "except when... necessary to preserve the life or health of the mother."" In Doe v. Bolton,6 a companion case to Roe, the Court declared that what the health of the mother meant in any particular case was a medical judgment to be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.7 The Roe decision invalidated the existing abortion legislation of virtually every state in the nation. Due to the sweeping nature of the ruling on such a deeply disputed issue, it was inevitable that the abortion controversy would continue to rage. However, friends and foes of the ruling did more than debate the implications of the Court's conclusions. Through a continuous series of legislative struggles, they strove to enact revised abortion statutes either to expand or to restrict the impact of the Roe decision. As a result, a host of lower court battles was spawned. The Supreme Court itself remained at the center of the ongoing debate. Repeatedly, it chose to interpret the scope of its original decision and to settle issues it had not anticipated, left ambiguous, or deliberately shelved. For the sake of convenience, I will group the Court's abortion developments after Roe in the following categories: consent and notice requirements, restrictions on public funding, and standard of care regulations. I will conclude with a brief analysis of the Webster decision and add my own reflections on the abortion issues that will continue to occupy our attention for the immediate future. II. CONSENT AND NOTIFICATION DECISIONS The consent issue first surfaced in Planned Parenthood of Central Missouri v. Danforth,' handed down in 1976. Danforth involved a Missouri abortion statute stipulating that a woman, unmarried and under eighteen years of age, must get the (...truncated)


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Phillip A. Smith. Abortion: From Roe to Webster, The Catholic Lawyer, 2017, Volume 33, Issue 3,