Supreme Court Cases

Webster v. Reproductive Health Services, 1989

Historical Background

The Supreme Court, in the case of Roe v. Wade, 1973, overturned a Texas antiabortion law and cleared the way for the legalization of abortion in the United States. That decision was based on the 1965 "right of privacy" precedent set in the Griswold case concerning a married couple's right to use contraceptives. Roe generated enormous disagreement between "right-to-life" and "pro-choice" advocates. In recent years, the fiercest struggles between these two camps have been fought in the legislatures of the 50 States.

While Roe effectively established a woman's right to an abortion, the decision itself was limited. First, it established the right only in the first trimester (three months) of pregnancy. Second, it said nothing about public funding of abortions. In the early 1980s, antiabortion activists and the politicians they supported, including President Ronald Reagan, sought to restrict access to abortion as a way to gradually reverse the Roe ruling. In some States, legislatures enacted "no public funding" provisions in order to limit access to abortion services. In 1980, the Court upheld these State laws. Illinois Representative Henry Hyde subsequently steered through Congress a bill restricting the use of Medicaid funds for abortions unless the life of the mother was threatened. This bill effectively ended the spending of federal funds for abortion. In a 1983 case, Planned Parenthood v. Ashcroft, the Court ruled that States could ban abortions absolutely once "the fetus became viable."

The composition of the Court in 1989 differed considerably—in both personnel and ideology—from the Burger Court of 1973 which handed down the Roe decision. That Court's most conservative member, William Rehnquist, abandoned his outsider role to become chief justice, although his views remained very much the same. While Justices Brennan, Marshall, Blackmun, and Stevens were presumed to support the Roe decision, the chief justice, Reagan appointees O'Connor and Scalia, and Roe dissenter Byron White were opposed. With the appointment of Anthony Kennedy in 1987, the prospects for upholding Roe were drastically altered by the time Webster came before the Court in 1989.

Circumstances of the Case

In 1986 the Governor of Missouri signed into law a statute which revised Missouri's standing law regarding abortions. The State legislature passed the statute, which declared that: (1) life begins at conception, (2) unborn children have rights, (3) public employees and facilities are forbidden to perform abortions not necessary to save the life of the mother, and (4) the use of public funds for counseling about abortion is prohibited. The crucial provision in the law was a section requiring extensive tests, for any woman 20 or more weeks pregnant and desiring an abortion, to determine if the fetus was "viable."

In July 1986, a number of health-care professionals from public institutions, and two nonprofit corporations that provided abortion services in Missouri, filed a motion in U.S. district court challenging the new law. In the first hearing for the case, the court declared the Missouri law unconstitutional. That district court decision was upheld in the United States Court of Appeals for the 8th Circuit. William Webster, Attorney General of Missouri, then appealed to the Supreme Court on behalf of the State.

Constitutional Issues

Could the State of Missouri make abortion a criminal action in the face of Roe v. Wade? Did the State have the authority to ban the use of public facilities and the assistance of publicly employed professionals for the purpose of limiting abortion? Does a woman have the right to an abortion? Was the action of the state a statement favoring "childbirth over abortion"? Should the State adopt a neutral position on the subject of abortion?


For Webster: There is a compelling and overriding need for the State of Missouri to protect life in the second trimester of pregnancy that overrides any woman's right to choose to have an abortion. Missouri's position is that Roe v. Wade is too broad a protection for pregnant women. Missouri believes that life begins at conception and that the State has a right and a responsibility to protect that life. Special testing before the abortion of a fetus 20 weeks old or older is required to determine fetal viability and to protect life. The testing does not infringe on the rights of the mother.

For Reproductive Health Services, Inc.: The battery of tests required by Missouri State law is an unnecessary and unconstitutional burden on pregnant women. Roe v. Wade guarantees the unconditional right of a woman to choose abortion in the first trimester. It would be an unfortunate and significant decision if the Court accepts the State's argument that it has an overriding and compelling need to protect life by prohibiting abortions under the terms of the State law. The medical procedure in question is a private and personal matter protected under the "penumbra of privacy" of the 4th, 14th, and 9th Amendments, among others. The Missouri law is unconstitutional.

Decision and Rationale

The Court, sharply divided along ideological lines, voted 5–4 to uphold the Missouri law. The Court ruled that Missouri was within constitutional bounds in passing legislation to withhold public funding for abortions and in prohibiting pre-abortion counseling by public employees. Three of the five-member majority sought to take the decision one step further by striking down Roe's blanket protection of abortions in the first trimester, but the other two justices refused to go that far. The second-trimester testing requirement was upheld, the majority having accepted the arguments for a "compelling State interest" in the second trimester.

Citing the rule of stare decisis—"let the decision stand"—the four-vote minority argued that Webster was a flawed ruling. Not only did it unfairly limit access to abortion, it was fundamentally inconsistent with the Court's decision in Griswold, 1965, and it threatened to erode the "right of privacy" established in that case.

Webster narrowed the constitutional protection of Roe v. Wade. The decision indicated that some degree of State regulation (and criminalization) of abortion was consistent with the Rehnquist Court's view of privacy rights.

Questions for Discussion

  1. What did the ruling of the Court mean to pregnant women in Missouri? Did the decision ban abortions?
  2. What are the principal arguments presented by those who believe that women have a "right of choice" under the 4th and 9th Amendments?
  3. What are the principal arguments offered by those who believe that "an unborn child has a right to life"?
  4. What does "viable" mean? What does this term have to do with debates about abortion?