The Constitution and Abortion
| Date | 01 March 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01808.x |
| Published date | 01 March 1990 |
| Author | A.I.L. Campbell |
CASES
The
Constitution and Abortion
A.
I.
L.
Campbell
*
In a much publicised and controversial decision,
Webster
v
Reproductive Health
Services,’
the United States Supreme Court again addressed the constitutionality of
restrictions on abortion. It is a case notable because of an opinion of Chief Justice Rehnquist,
joined by
two
other Justices. He wrote the opinion
of
the Court on three questions before
the Court, and
an
opinion joined by Justices White and Kennedy on a provision of a
Missouri Act concerning testing for the viability of a fetus, and on the question
of
overruling
Roe
v
Wade,z
the basic abortion decision. The three Justices
are
referred to here, and
by other Justices in the case, as the plurality. The views of the plurality are important,
though they are not the opinion of the Court as such, because they declare that ‘we would
narrow and mod@’
Roe
v
Wade,
and succeeding cases. Indeed,
in
the view of other Justices,
the plurality would effectively or silently ‘overrule’
Roe
v
Wade.
The case
is
also notable
for the vehement reaction of Justice Blackmun, who wrote the opinion of the Court in
Roe
v
Wade,
and dissented in highly expressive fashion in this case. Finally, the case
is perceived as being the beginning of a historic retreat on abortion
right^,^
and the
signalling of the end of a liberal tradition which began with the ‘historic’ verdict in 1954
on racial desegregation in ~chools.~
The
Missouri
Act
The case involved a challenge by five health professionals and
two
non-profit corporations,
Reproductive Health Services and Planned Parenthood of Kansas City, the Appellees before
the Supreme Court, to the constitutionality of certain provisions of a Missouri Act of
1986
amending that State’s law on unborn children and abortions. The first of these provisions,
the Preamble, stated that the life of each human being begins at conception, and that unborn
children have protectable interests in life, health and well-being. The Act also required
that all Missouri laws
be
interpreted to provide unborn children with the same rights enjoyed
by other persons, subject to the Federal Constitution and the decisions of the Supreme
Court. A further provision prohibited the use of public employees and facilities to perform
or assist abortions not necessary to save the mother’s life. The Act also contained prohibi-
tions on the use
of
public funds, speeches by public employees or in public facilities, to
encourage or counsel a woman to have an abortion not necessary to save her life. Only
the public funds prohibition here came before the C~urt.~ It additionally required that,
*
Lecturer in Law, University of Aberdeen. The author is grateful to Dr Kenneth McK Norrie for his helpful
comments on an earlier draft.
Webster, Attorney General
of
Missouri et
a1
v
Reproductive Health Services et al,
3 July 1989. Page
references hereafter are
to
the Slip Opinion, which is subject
to
revision. The case was subsequently
reported in 106 L Ed 2d 410 (1989).
410
US
113; 35
L
M
2d 147 (1973).
7he
Baltimore
Sun,
4 July 1989.
i’he Guardian,
4
July 1989; see
Brown
v
Board
of
Education
of
Topeka, Shawnee
County,
Kan.,
347
US
483 (1954).
The State chose not to appeal on the provisions on employees or facilities, and to appeal only the provision
on public funding, though the Court of Appeals had found that all‘three provisions on encouraging or
counselling a woman were unconstitutionally vague, and infringed her right to choose an abortion
after receiving medical information necessary to exercise the right knowingly and intelligently.
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2
3
4
5
238
The
Modern Law Review
53:2 March 1990 0026-7961
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