Abortion: From Roe to Webster
Abortion: From Roe to Webster
Phillip A. Smith
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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)