Last July in Webster v. Reproductive Health Services a severely fractured Court upheld a Missouri statute that prohibited abortions in publicly funded hospitals. The decision limited yet did not overturn Roe v. Wade. Still it left open the possibility that the Court might do just that if given a better instrument. Attention then turned to the next set of abortion cases it would consider. Or, rather, attention turned to one of the three cases on the Court’s docket, Turnock v. Ragsdale, which challenged an Illinois statute requiring outpatient clinics that provide abortions during the first three months of pregnancy to have their operating rooms meet expensive hospital standards. These standards, which the lower court found to be without medical justification, would put many clinics out of business and force the others to charge fees that many women would have difficulty paying, if they could pay at all. It would thus seriously curtail the right to abortion. As Ronald Dworkin wrote in these pages:
Since the Webster decision holds that states may forbid abortion in any public hospital or facility, upholding the Illinois statute would have the same effect, for many women, as denying them any right even to an early abortion.”
It was this possibility that captured a public imagination already inspired by the Webster decision.
It became clear from Justice Rehnquist’s opinion in Webster that at least he and Justices Kennedy and White were interested in rewriting Roe v. Wade, if not, like Justice Scalia, abandoning it outright. The Ragsdale case was understood to give them the opportunity to do so, and advocates of abortion rights in both parties around the country began to coalesce in the months after Webster. Neil Hartigan, the Illinois attorney general who had aggressively pursued Ragsdale through the lower courts, then had a change of heart. He undertook frantic eleventh-hour negotiations with the ACLU, which had brought the suit, to settle the case.
The settlement, just two weeks before the Court was to hear the case, was expedient not only because it removed the case from the Justices’ reach; it was expedient for Mr. Hartigan personally. An astute politician, he had just announced his desire to run for governor. As the success of pro-choice candidates in Virginia and California was then showing, and rifts in the Republican party show today, championing abortion rights may no longer be a liability for politicians; in fact, it may even be a necessity.
Since the Ragsdale case was settled, public interest in the Court’s abortion cases has waned. It will be at least another year before the Justices are presented with an opportunity to scuttle Roe—an opportunity provided by neither of the two remaining cases, Hodgson v. Minnesota or Ohio v. Akron Center for Reproductive Health, both of which challenge state laws requiring that one or both parents be informed before a minor can get an abortion. But the Webster decision proves that Roe need not be overturned to be effectively nullified, and …