The Future of Abortion

On July 3 the Supreme Court decided Webster v. Missouri Reproduction Services, the abortion case that had been the subject of unprecedented political campaigns, demonstrations, and public debate for months. By a five-to-four vote, the Court left standing every provision of the Missouri statute restricting abortion that had been brought before it, reversing lower federal courts which had declared these provisions unconstitutional.

The most important of the Missouri provisions prohibits abortion altogether in any “public facility,” defined very broadly to include “any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivision thereof.” Since the statute forbids abortion in any such facility even when paid for privately and performed by a private doctor, the effect will be to deny abortions to many women too poor or otherwise unable to find a doctor and hospital with no state connections. That is a serious and discriminatory constraint, which other states can now be expected to copy.

Nevertheless the Court’s decision did not go as far in restricting women’s rights to have an abortion as anti-abortion groups had hoped it would. The state of Missouri and the Bush administration had both invited the Court to take the opportunity to overrule Roe v. Wade, the famous and much criticized 1973 Supreme Court decision which struck down a Texas statute that prohibited abortion at any time except to save the mother’s life. The Court said then that states cannot prohibit abortion, except to protect the mother, before the third trimester of pregnancy. The main opinion in Webster, written by Chief Justice Rehnquist, said that the Court was not overruling Roe v. Wade, because it was not deciding that states could make abortion criminal even in early pregnancy. But the opinion also said that the Court was abandoning the “rigid trimester structure” of Roe, which prohibited any regulation of abortion before the third trimester except in the mother’s interests.

The opinion left open the possibility that the Court would overrule Roe completely in a future case, and in effect it invited other states to enact even more restrictive legislation than Missouri had. State politics have been dominated by the abortion issue since the decision was announced.

Rehnquist’s opinion was supported in full by only two other justices—White and Kennedy. Since Justices Scalia and O’Connor agreed with the Rehnquist group that the Missouri provisions restricting abortion were constitutional, the decision to reverse the lower courts was a majority decision and therefore the decision of the Court as a whole. But Scalia and O’Connor each rejected important parts of Rehnquist’s opinion, and four justices, joining or supporting a fierce and persuasive opinion by Justice Blackmun, dissented from almost all of it. So the opinion represents the full views of only three justices, and it is wrong to assert, as many commentators have, that its remarks about Roe v. Wade have already changed constitutional law …

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