Webster’s Chaotic Aftermath

As legal doctrine, the Supreme Court’s blockbuster decision in Webster vs. Reproductive Health Services is a disappointment. It tells us little that we did not already know and provides only the dimmest guidance for future litigation. As abortion policy, the decision is a disaster.

In the aftermath of Webster, seven of the nine justices have taken unequivocal stands on Roe vs. Wade, the 1973 decision that first recognized the constitutional right to an abortion. Four (William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and John Paul Stevens) stand solidly behind Roe. Three (William H. Rehnquist, Byron R. White and Antonin Scalia) are explicitly prepared to overrule.

The future therefore lies with Justices Anthony M. Kennedy and Sandra Day O’Connor. In Webster, Kennedy joined with Rehnquist and White in an opinion that refused to decide whether Roe should be explicitly overruled, but whose hostility to any constitutionally protected right to an abortion was undisguised. It is not clear whether this means that Kennedy is unprepared to overrule Roe, or that he is only biding his time before showing his hand. The smart money is on the latter interpretation.

O’Connor is therefore once again uncomfortably at center stage. As in past decisions, she refused to say whether she regards Roe as sound precedent. She needn’t decide that question, she said, because her previous position--that regulation of “abortion is not unconstitutional unless it unduly burdens the right to seek an abortion”--would permit the Missouri law at issue in Webster to stand.

The court’s refusal to reach the question of Roe’s continued validity irritated Scalia. He charged that the “indecisive” decision “preserves a chaos that is evident to anyone who can read and count.” Scalia is clearly right in this: The outcome in Webster is an open invitation to state and local governments to test the limits of the court’s resolve. If O’Connor and Kennedy in fact believe that Roe should be overturned, there is little to justify the agonizing uncertainty, the untold hours of unnecessary effort and litigation, the mountains of wasted legal fees and judicial time that Webster is almost certain to produce.

If O’Connor and Kennedy are postponing the destruction of Roe in the hope that the coup de grace will seem less political if sufficiently delayed, they are almost certainly incorrect. As frustration and anxiety grow, as legislative options for the regulation of abortion increase but remain trapped in the courts, the whole question will become more, rather than less, politicized. Whenever and however Roe is destroyed, the court will have hell to pay.

If there are in fact five justices who believe that the whole question of abortion should be handed back to the states for legislative resolution, then it would be best for the court and the country to have done with it cleanly and decisively.

In the meantime, however, the definitive vote in evaluating the constitutionality of abortion regulation is likely to be O’Connor’s, which means that everything depends on which regulations she will find to be “unduly” burdensome. Unfortunately, her opinion casts little if any illumination on this question.

There were two salient issues. The first concerned a Missouri statute banning the utilization of any public facility for abortions not necessary to save the life of the mother. Ten years ago the court ruled that state governments could withhold public support for abortions. The Missouri law was different because its broad definition of “public facility” suggested that the state was attempting to reach out and use public property as leverage to control private conduct.

O’Connor, however, refused to decide the question of the reach of Missouri law, stating that the constitutionality of the application of the law to private hospitals leasing state-owned land “need not be decided here.”

She pursued a similar strategy of deflection with regard to the second major issue--a poorly drafted Missouri statute that appeared to require that physicians conduct expensive and possibly dangerous tests whenever performing abortions at 20 weeks or later. O’Connor ducked the issue by reinterpreting the statute to require only safe and easily administered medical tests that “would only marginally, if at all, increase the cost of an abortion.”

At every level, then, Webster raises more questions than it answers. This result could be disabling for the pro-choice movement. In the past decade the movement has been lulled into political lethargy by the siren promise of judicial protection. Had the court swept Roe cleanly off the books, the movement might have been galvanized into action. But the legal ambiguities of Webster appear to offer yet another siren call, one the movement would be well-advised to ignore. In the future, the real game will be played in state legislatures, not federal courts. What remains to be seen is whether the pro-choice movement can effectively mobilize in the absence of a clear and decisively negative court ruling that would enable states seriously to constrict the access to abortion of middle-class women.