Abortion and the Constitution (Update 1a)

AuthorRuth Colker
Pages6-9

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Abortion LEGISLATION rarely, if ever, demonstrates concern for the well-being of women. It usually represents the state using coercive measures to persuade women to bear children rather than have abortions. As long as American society treats women and their reproductive capacity with disrespect by not funding prenatal care, postnatal care, paid pregnancy leave, effective and safe forms of BIRTH CONTROL, or child care, it is hard to imagine that a legislature that respects the well-being of women could enact restrictions on abortion. Thus, when we read abortion legislation or an abortion decision by the courts, we should ask ourselves whether that legislature or that court could have reached the decision that it reached if it fully respected the well-being of women. Under such a framework, we would have to conclude that the Missouri legislature that enacted the abortion legislation challenged in WEBSTER V. REPRODUCTIVE HEALTH SERVICES (1989) did not respect the well-being of women, especially poor or teenage women. Nevertheless, no member of the Supreme Court in Webster, including the dissenters, demonstrated a real grasp of the significance of the Missouri legislation on the lives and well-being of poor women and teenage women.

In Webster, the Supreme Court was asked to consider the constitutionality of a Missouri statute that contained four provisions arguably restricting a woman's ability to have an abortion. Two provisions received most of the

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Court's attention: first, a requirement that a physician ascertain whether a fetus is viable prior to performing an abortion on any woman whom he or she has reason to believe is twenty or more weeks pregnant; and, second, a prohibition against using public employees or facilities to perform or assist an abortion not necessary to save the mother's life.

Chief Justice WILLIAM H. REHNQUIST wrote the opinion for the Court. His opinion was joined by four other Justices?BYRON R. WHITE, SANDRA DAY O'CONNOR, ANTONIN SCALIA, and ANTHONY M. KENNEDY?with respect to the second provision. Rehnquist's conclusion that this part of the statute was constitutional was an extension of the Court's earlier decisions in the Medicaid abortion-funding cases. Rather than apply the more stringent test that had been developed in ROE V. WADE (1973), Rehnquist applied the more lenient standard developed in HARRIS V. MCRAE (1980)?asking whether the state legislature had placed any obstacles in the path of a woman who chooses to terminate her pregnancy. Rehnquist concluded that the state'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. As in Harris v. McRae, Rehnquist acknowledged that a state was permitted to make a value judgment favoring childbirth over abortion and to implement that judgment in allocating public funds and facilities.

Justice HARRY BLACKMUN'S dissent, which was joined by Justices WILLIAM J. BRENNAN and THURGOOD MARSHALL, argued that Missouri's public facility provision could easily be distinguished from Harris v. McRae because of the sweeping scope of Missouri's definition of a public facility. (Justice JOHN PAUL STEVENS dissented separately.) Under Missouri's broad definition, any institution that was located on property owned, leased, or controlled by the government was considered to be public. Thus, the...

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