• Last updated on November 11, 2022

The Supreme Court substantially expanded the ability of the states to place restrictions on the availability of abortion services.

In 1986 the state of Missouri enacted an abortion statute that included three major provisions: a preamble declaring that human life “begins at conception” and that “unborn children have protectable interests in life, health, and well-being”; a prohibition on the use of public facilities and personnel for performing abortions or for counseling a woman to obtain an abortion, with exceptions allowed to save the life of a pregnant woman; and a requirement for a viability test whenever a physician believed that a fetus was twenty weeks of gestational age. Because of recent changes on the Supreme Court, it appeared possible that the justices might use the case to overturn the Roe v. Wade (1973) precedent. Thus, pro-choice and pro-life groups filed seventy-eight amicus curiae briefs, the largest number ever submitted to the Court in a single case.Abortion;Webster v. Reproductive Health Services[Webster v. Reproductive Health Services]

The Court responded in a fragmented and complex manner. By a 5-4 vote, the Court upheld all the provisions of the statute, but the majority could not agree on a united opinion. Speaking for a plurality of three, Chief Justice William H. Rehnquist acknowledged that the due process clause of the Fourteenth Amendment protected a “liberty interest” that included a woman’s limited right to choose to terminate a pregnancy. However, Rehnquist applied the rationality test and insisted that the state’s legitimate interest in protecting “potential human life” was of equal weight throughout the pregnancy. It appeared that such an approach would have allowed the states to enact almost any regulation to protect fetal life, even to the extent of making abortions illegal. Although Justice Sandra Day O’Connor voted with the majority, she continued to push her undue burden approach, which accepted the woman’s fundamental right to an abortion until the development of fetal viability. Justice Antonin Scalia, in contrast, argued in favor of overturning Roe entirely. Harry A. Blackmun, joined by two other dissenters, argued that the statute violated a fundamental right as recognized in Roe. Also dissenting, Justice John Paul Stevens found that the preamble of the statute violated the First Amendment because it endorsed a particular religious view.

Although the Webster decision did not overturn Roe, it signaled that the Court was willing to approve quite restrictive regulations. In Planned Parenthood of Southeastern Pennsylvania v. Casey[case]Planned Parenthood of Southeastern Pennsylvania v. Casey[Planned Parenthood of Southeastern Pennsylvania v. Casey] (1992), a controlling plurality of the justices endorsed the undue burden test as advocated by Justice O’Connor.


Due process, substantive

Fundamental rights

Judicial scrutiny

Planned Parenthood of Southeastern Pennsylvania v. Casey

Privacy, right to

Roe v. Wade

Categories: History