Abortion and the Constitution (Update 1b)

AuthorJoseph D. Grano
Pages9-11

Page 9

With President RONALD REAGAN'S elevation of Justice WILLIAM H. REHNQUIST to CHIEF JUSTICE and his appointment of Justices ANTONIN SCALIA and ANTHONY M. KENNEDY, many expected the Supreme Court to revisit its decision in ROE V. WADE (1973), which struck down laws against abortion. Tension mounted when the Supreme Court noted probable jurisdiction in WEBSTER V. REPRODUCTIVE HEALTH SERVICES (1989). Relying on Roe, the lower court in Webster had held unconstitutional several provisions of a Missouri statute regulating abortions, including a statement from its preamble that human life begins at conception, a requirement that the aborting physician perform a viability test when he or she has reason to believe the woman is at least twenty weeks' pregnant, and a prohibition on the use of public employees or public facilities to perform an abortion that is not necessary to save the mother's life. In its appeal, Missouri, joined by the Department of Justice as AMICUS CURIAE, argued not only that the invalidated provisions should be upheld under Roe and the Court's subsequent abortion cases but, more significantly, that Roe itself should be overruled.

Without passing on the constitutional validity of all the statutory provisions that had been challenged, the Court, in a 5?4 decision, reversed the lower court and gave the prolife movement its first major legal victory since Roe was decided. Whether Webster will prove a truly significant victory for this movement, however, remains to be seen. First and most encouraging for prochoice advocates, the Court once again found no occasion to revisit Roe 's controversial conclusion that the right to an abortion is protected by the Constitution's DUE PROCESS clauses. Second, although the Court's judgment of reversal garnered majority support, portions of Chief Justice Rehnquist's opinion did not obtain five votes. Particularly noteworthy was Justice SANDRA DAY O'CONNOR'S refusal to join important sections of the opinion. Third, the extraordinary media publicity surrounding Webster may have contributed to exaggerated perceptions by both sides of what the Court actually held.

In upholding Missouri's restriction on the use of public employees or facilities to perform abortions, the Webster majority relied on the Court's previous abortion-funding cases. The Court emphasized, as it had done before, that as long as the states do not actually restrict the abortion decision, the Constitution allows them to make the value judgment that childbirth is preferable to abortion. In denying the use of public employees and facilities for abortions, Missouri did not place any obstacles in the path of women who choose to have an abortion; that is, Missouri's restriction left pregnant women with the same choices they would have had if the state had not chosen to operate public hospitals at all. In short, although the Constitution, as interpreted by Roe, may not allow the states to prohibit abortions, it does not give either doctors or women a right of access to public facilities for the performance of abortions.

Many prochoice commentators have criticized this aspect of the Court's holding in Webster because of its alleged effect on the availability of abortions for certain women. The Court's task, however, was to decide not whether Missouri made a wise or good policy choice but whether anything in the Constitution...

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