Webster v. Reproductive Health Services

Reproductive Health Services (RHS), a non-profit organization, brought this class action suit challenging the constitutionality of a Missouri law (the Act) regulating the performance of abortions.

The Act did the following:

• Set forth, in the preamble, that the “life of each human being begins at conception,” and that “unborn children have protectable interests in life, health, and well-being,” (§ 1.205.1(1));
• Required, in the preamble, that all State laws be interpreted to provide unborn children with the same rights enjoyed by other persons (§ 1.205.2);
• Required that a physician ascertain the viability of a fetus prior to performing an abortion on a woman thought to be more than 20 weeks pregnant (§ 188.029);
• Prohibited the use of public employees and facilities to perform or assist nontherapeutic abortions (§§ 188.210, 188.215); and
• Restricted the use of public resources for the purpose of “encouraging or counseling” women seeking non-lifesaving abortions (§§ 188.205, 188.210, 188.215).

RHS claimed the Act infringed upon the rights guaranteed by the First, Fourth, Ninth, and Fourteenth amendments; it sought declaratory and injunctive relief. The District Court enjoined the enforcement of the aforementioned provisions, declaring them constitutionally invalid. The Court of Appeals affirmed the decision.

The Court neither explicitly affirmed nor overturned its decision in Roe v Wade, 410 U.S. 113 (1973), which established the right of a woman to terminate her pregnancy, on the basis that the facts in Roe v Wade differed substantially from those in the present case. The Missouri statute stated that viability was the point at which the State’s interest in potential human life should be safeguarded, and thus the point at which the State “may, if it [chose], regulate, and even proscribe, abortion except where it [was] necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” On the other hand, the statute in Roe v Wade criminalized the performance of all abortions, except when the mother's life was at stake.

However, a four Justice plurality indicated a preference toward modifying and narrowing Roe. It asserted that there was “no reason why the State's compelling interest in protecting potential human life should not extend throughout pregnancy, rather than coming into existence only at the point of viability.” It proposed that the “Roe trimester framework should be abandoned.”

The Court upheld the Act’s preamble as constitutionally valid. The Court stated that the preamble “did not seek to regulate abortion,” noting that Roe v Wade implied “no limitation on the authority of a State to make a value judgment favoring childbirth over abortion” and that the preamble simply expressed that sort of value judgment.

The Court made no determination concerning the extent to which the preamble might be used to interpret other State statutes or regulations addressing protections to unborn children as the issue did not apply to the present case.

The Court also upheld the Act’s prohibition on the use of public employees, facilities and funds to perform or counsel about abortion. The Court held that the Constitution did not require States to “enter or remain in the business of performing [nontherapeutic] abortions,” affirming Maher v Roe, 432 U.S. 464 (1977), Poelker v Doe, 432 U.S. 519 (1977), and Harris v McRae, 448 U.S. 297 (1980). It held that if a State may make a value judgment favoring childbirth over abortion and implement this decision through the allocation of public resources.

The Court further held that the State’s decision to use public facilities and staff to promote childbirth over abortion placed “no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.” It explained that the Act only restricted a woman’s ability to obtain an abortion “to the extent that she [chose] to use a physician affiliated with a public hospital.”

The Court also upheld the Act’s provision requiring physician’s to perform tests regarding fetal viability. The Court held that the testing requirement was constitutionally valid as it furthered the State’s interest in protecting potential human life. It explained that the State had “chosen” viability as the point at which its interest arose, and that the requirement was reasonable as it was designed to ensure that abortions were not performed where the fetus was viable.

“Missouri'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. The challenged provisions only restrict a woman's ability to obtain an abortion to the extent that she chooses to use a physician affiliated with a public hospital.” 492 U.S., p. 509.

“If the State may ‘make a value judgment favoring childbirth over abortion and . . . implement that judgment by the allocation of public funds,’ . . . surely it may do so through the allocation of other public resources, such as hospitals and medical staff.” 492 U.S., p. 510.

“Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions.” 492 U.S., p. 510.

“In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework — trimesters and viability — are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine.” 492 U.S., p. 518.

“It is true that the [tests to determine viability] increase the expense of abortion, and regulate the discretion of the physician in determining the viability of the fetus. Since the tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were in fact second-trimester abortions. But we are satisfied that the requirement of these tests permissibly furthers the State's interest in protecting potential human life, and we therefore believe [the requirement] to be constitutional.” 492 U.S., p. 519-20.

“Both appellants and the United States as amicus curiae have urged that we overrule our decision in Roe v. Wade . . . The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake []. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, . . . and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.”  492 U.S., p. 521.