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The Future of Abortion

1.

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.1 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.2 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. Nevertheless the opinion must be studied carefully because it suggests how a crucial group of justices will vote in later cases, not just about abortion but also about other individual liberties the Supreme Court has protected from majority interference in recent decades.

Justice Scalia, in an indignant concurring opinion, said that it was irresponsible of the Court not to overrule Roe v. Wade outright. He said that Rehnquist’s approach left states in doubt about their rights, and left the Court subject to continuing and unseemly political pressure. Justice O’Connor, on the contrary, criticized the Rehnquist opinion for saying too much rather than too little about Roe. She said that Rehnquist had simply invented a false conflict between the Missouri statute and the Roe v. Wade trimester structure, and she cited ample authority, including statements from earlier opinions by Rehnquist himself, that the Supreme Court should not pronounce on issues of constitutional law not raised by the case before it. “When the constitutional invalidity of a State’s abortion statute actually turns on the constitutional validity of Roe v. Wade,” she said, “there will be time enough to examine Roe. And to do so carefully.”3

O’Connor was plainly right.4 Rehnquist claimed only that one section of the Missouri statute was inconsistent with the theory of Roe v. Wade: section 188.029, which requires doctors, before performing an abortion on any woman they have reason to think is twenty or more weeks pregnant, to determine whether the fetus is viable by performing “such medical examinations and tests as are necessary to make a finding of [its] gestational age, weight, and lung maturity.”

Lower federal courts had held this clause unconstitutional on the ground that it required expensive and sometimes dangerous tests even when there would be no medical point in performing them. If that were the correct interpretation, the clause would be unconstitutional because irrational, quite apart from Roe v. Wade. But Rehnquist saved the clause by interpreting it in a different way: he said that in spite of its apparently imperative language it should be read as requiring only those tests that a “careful and prudent” doctor would use in the circumstances.5 Then he said that since the statute required doctors to perform such tests even when they had reason to think a fetus had reached only twenty weeks, it violated the strict structure of Roe v. Wade, because if the fetus did turn out to be only twenty weeks of age the state, by requiring tests, would have intervened in a second-trimester abortion, which Roe does not permit.

That is a stunningly bad argument. Rehnquist himself quoted the lower court’s findings that “the medical evidence is uncontradicted that a 20-week fetus is not viable,” and that “23 1/2 to 24 weeks gestation is the earliest point in pregnancy where a reasonable possibility of viability exists.” But he added that the lower court “also found that there may be a 4-week error in estimating gestational age‌[and the possibility of such an error] supports testing [when doctors have reason to think the fetus is twenty weeks old].” If so, then, contrary to Rehnquist’s argument, Missouri’s medical requirement can be assigned a purpose wholly consistent with the trimester structure; indeed it must be assigned that purpose in order not to be thought irrational. It attempts to insure that doctors do not carelessly abort viable fetuses. Briefs filed by both an anti-abortion medical group and the American Medical Association pointed out that noninvasive and relatively inexpensive tests, like ultrasound examinations, can confirm a doctor’s judgment that a fetus has not reached twenty-four weeks, and so allow him to make all the other findings the statute requires by inference. If his judgment is confirmed, he is free to abort with no further tests. If it is not, then the fetus is viable, and Missouri may prohibit the abortion under the Roe v. Wade structure.

Roe v. Wade recognizes that the states have a “compelling” interest in preventing the abortion of viable fetuses, and it therefore permits a state to adopt reasonable regulations to insure that viable fetuses are not aborted negligently. A requirement that doctors perform whatever tests a careful and prudent doctor would perform to insure that a fetus is not viable is plainly a reasonable regulation to that end. Justice Blackmun, who wrote the opinion in Roe v. Wade, said on behalf of himself and Justices Brennan and Marshall that if section 188.029 were interpreted as Rehnquist did it would plainly be constitutional under the trimester structure, and Justice Stevens, in his separate dissent, agreed. Even the brief for Missouri Reproduction Services, the plaintiff that had challenged the statute, itself conceded that point. It argued that the interpretation Rehnquist ultimately adopted was implausible, but it said that if that interpretation were adopted it would no longer have any constitutional objection to the clause.

So Rehnquist offered his bad argument in an effort not to reconcile his decision with judicial precedent, as judges often do, but to show that his decision was inconsistent with precedent, which is extraordinary. The conclusion is irresistible that he had determined in advance somehow to damage Roe v. Wade without explicitly overruling it, and the crucial question, for those concerned with the future of constitutional law and individual rights, is why he did so. Scalia hinted at a depressing explanation in his bitter prediction that Rehnquist’s opinion would be hailed as a “triumph of judicial statesmanship.” It is possible that Rehnquist hoped to satisfy as many of the parties in the abortion debate as possible by saying both that the Court was leaving Roe v. Wade “undisturbed,” and that it was abandoning the fundamental logic of that case, ignoring the contradiction.

Blackmun’s angry but powerful dissent suggests a different explanation, Machiavellian rather than Solomonic: that Rehnquist, White, and Kennedy do intend eventually to overrule Roe altogether, and leave women with no constitutional rights to an abortion at all, but that they intend to do so not directly and in plain terms, having to confront strong arguments and strong contrary public opinion, but indirectly and in stages. Blackmun may be right. 6

Some commentators find evidence for a more favorable interpretation of the Rehnquist opinion, however.7 They suggest that Rehnquist and his colleagues may have attacked Roe v. Wade‘s structure to prepare the way for substituting, in future cases, a new set of principles that would adjust the rights of the state and individual women somewhat differently: to give states greater power to regulate abortion than they have under Roe‘s trimester doctrine, and yet confirm that a woman has some constitutional right to make her own decision whether to continue an unwanted pregnancy, even though it is a more limited right than Roe recognized.

Is there evidence in Rehnquist’s opinion that he and the justices who joined him intend to allow women some limited right to an abortion? He said that he and they regard abortion as a “liberty interest protected by the due process clause,” and that any difference between that description and saying that women have a fundamental right to an abortion would be “abstract.” That does seem to suggest at least some constitutional protection for a woman’s right to choose. But other lawyers fear exactly the opposite: that the terminological shift from the language of protected rights to the language of liberty interests, far from being academic, means that the Rehnquist group will in the end accept no significant limits on the state’s power to regulate or even forbid abortion.

We must notice a point of constitutional practice in order to understand that fear. The Supreme Court has distinguished between two tests it uses to decide whether a state has the constitutional power to limit the liberty of individuals in order to pursue some collective policy or objective. The first is the “compelling interest” test which it used in Roe v. Wade and in other cases when important personal liberties were at stake, and which permits liberty to be abridged only when necessary to protect some important state interest, in this case in preventing the abortion of viable fetuses.

  1. 1

    I discussed the merits of the case in an earlier article in this journal, “The Great Abortion Case,” The New York Review (June 29, 1989).

  2. 2

    In her concurring opinion, Justice O’Connor noticed the broad definition of “public facility,” and suggested that some applications of the provision—against private hospitals leasing state-owned equipment or state land, for example—might perhaps be unconstitutional in spite of the Court’s decision in Webster. She voted to sustain the statute against general constitutional challenge because she thought that “straightforward” applications of the statute to abortions performed in ordinary state hospitals was permissible under previous decisions. Her qualifying remarks are important, because her vote was necessary to sustain the provision.

  3. 3

    Justice O’Connor is now the key figure whose votes and opinions are likely to determine future abortion cases. Careful observers have thought that in her concurring opinion in this case she seemed less opposed to guaranteeing women substantial rights to an abortion than she has on other occasions. Even in earlier opinions, however, she seemed not to object to the idea that states may not place “undue” burdens on abortions, and that regulations amounting to a total prohibition of early abortion except to save the mother’s life might well be “undue.” That might help to explain Justice Scalia’s biting and condescending criticism of her concurring opinion. He ridiculed her for saying that the state has an “interest in potential life when viability is possible,” a phrase he said was “irrational” because, since viability means that life is possible, the possibility of viability means the possibility of a possibility, which is absurd. O’Connor’s linguistic sense was sounder than Scalia’s. In the medical and legal literature, “viable” means having reached the stage of physical development, in particular of lung capacity, that makes survival possible. So it makes perfect sense to say that viability is possible, rather than certain, when it is uncertain whether a fetus is only twenty weeks or as much as four weeks older.

  4. 4

    Justice Blackmun made the same point, in careful detail, in his dissent.

  5. 5

    Justice Stevens, in dissent, criticized Rehnquist’s interpretation.

  6. 6

    Rehnquist’s opinion is certainly consistent with that interpretation. His group lacked the necessary votes to overrule Roe v. Wade altogether, in this case because O’Connor made it plain that she would not vote that way now. If they had joined with Scalia, the headlines might have reported that the Court had decided, five to four, not to overrule Roe. On the other hand, if they had argued as O’Connor wished, that the Missouri statute is constitutional because it is perfectly consistent with Roe and other past decisions, that deference to Roe might have seemed to confirm its place in constitutional jurisprudence. So the Rehnquist group in fact did the most they could have done to damage Roe on this occasion by claiming that the Court, just in upholding the Missouri statute, had undermined the principles behind that precedent though not its actual ruling.

  7. 7

    See Anthony Lewis’s column, The New York Times (July 6, 1989).

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