Sixteen years after Roe v. Wade, the U.S. Supreme Court’s decision in Webster v. Reproductive Health Services allowed states to set some restrictions on abortion.
Seldom has a U.S. Supreme Court ruling been as controversial as that in the case of Roe v. Wade.
Pro-choice groups were satisfied with the Court rulings. Pro-life groups, however, were left with a situation in which they could find few legal avenues through which to express their dissent. Perhaps partly for that reason, a small minority turned to civil disobedience. Randall Terry, founder of Operation Rescue,
Only a very few pro-lifers, however, were involved in tactics such as those used by Operation Rescue. Most attempted to work within the few legal avenues available in the aftermath of Roe v. Wade. The first of these avenues was constitutional amendment. Since 1973, the right-to-life movement had held an annual march to Washington, D.C., on the January 22 anniversary of Roe v. Wade, protesting the decision and calling for a constitutional amendment prohibiting abortion. They consistently failed to gather sufficient support for such an amendment. A second legal avenue was to lobby against congressional funding for abortion. This tactic often worked. It could not, however, be used to contest the legality of abortion, a very important goal for pro-lifers. A third possibility was to work for a change in the composition of the Supreme Court. This avenue eventually led to a window of opportunity for pro-life groups in 1989.
The Court majority in Roe v. Wade had been steadily eroding as a result of retirements and appointments to the Court by President Ronald Reagan. Only three of the justices who made up the seven-to-two majority in 1973 remained on the Court in 1989. On January 9, 1989, this Court, which was clearly more conservative than the one that had adjudicated Roe v. Wade, decided to hear the case of Webster v. Reproductive Health Services.
The Webster case involved a Missouri statute that stated that life begins at conception and that unborn children have interests in life, health, and well-being that can be protected. It forbade the use of public funds to counsel or encourage a woman to have an abortion, made abortions more difficult to obtain after twenty weeks of pregnancy, and forbade public hospitals and employees to perform or assist in abortions not necessary to save the life of the mother. The Missouri law also required a physician to perform and record tests on fetal gestational age, weight, and lung maturity if there was reason to believe that the mother was twenty or more weeks pregnant. The state claimed that a fetus of that age may be viable given modern technology. The state of Missouri was in effect arguing that the U.S. Constitution does not protect a fundamental right to abortion.
Webster v. Reproductive Health Services drew seventy-six amicus curiae (friend of the court) briefs, more than any other case in recent history. Among the groups that filed briefs urging pro-life action were the Christian Action Council,
Pro-life and pro-choice groups swung into action. Legal representatives for Reproductive Health Services contended that the right to choose an abortion is properly among the fundamental freedoms protected by the Constitution. Acting Solicitor General William C. Bryson directly contradicted that contention in the brief submitted for the Bush administration. He stated that a supposed fundamental right to abortion can draw no support from either the text of the Constitution or U.S. history. Pro-choice historians argued that abortion should not be restricted in 1989 because abortion was neither uncommon nor illegal in the early nineteenth century. Pro-life groups countered that slavery, child labor, and the disenfranchisement of women were also common and legal at that time.
Religious leaders tended to focus on their belief in a fundamental right to life, and thus sided with the pro-lifers. Not all religious persons were on the pro-life side of the argument, however. Faith Evans,
On July 3, 1989, the Supreme Court ruling in the case of Webster v. Reproductive Health Services upheld Missouri’s abortion restrictions. The Supreme Court would no longer be the primary locus of the abortion controversy. Power would now reside as well in state and national legislative bodies, and with the governors of the states.
With that expanded battlefront in mind, pro-life activists in every state began developing strategies to limit abortion. They planned for the introduction of legislation that could include requiring doctors to give women detailed information about fetal development and possible complications from abortion, granting some veto power to the father of the unborn child, and prohibiting abortion for reasons such as the sex of the child, inconvenience, or financial hardship.
One year after the Webster decision, in 1990, approximately three hundred bills had been introduced across most of the forty-four state legislatures that held sessions in that year. Pennsylvania was the first state to take legislative action, passing a bill that set limits on late abortion; mandated notification of husband, informed consent, and a twenty-four-hour waiting period before an abortion; and banned sex-selection abortion and the use of aborted fetuses for medical research. South Carolina and Michigan passed laws requiring parental consent before a minor’s abortion. West Virginia passed a law setting limits on state-funded abortions. Indiana established subsidies for the adoption of special-needs children as an alternative to abortion.
Attempts to pass pro-life legislation were not always successful, however. In Idaho, Louisiana, and Mississippi, restrictive laws were passed by the legislature but vetoed by the governor. Florida governor Robert Martinez
Although the 1989 Webster v. Reproductive Health Services decision did not result in any drastic curtailment in the number of abortions performed in the United States, at least not in the short run, pro-life groups rightly hailed it as a significant change of policy on the part of the Supreme Court, one that allowed them to have a greater share in the decision-making processes regarding abortion.
With more legislative possibilities open to them than at any time since 1973, pro-life groups began to suffer from internal divisions. Although the official policy of all major pro-life groups was to oppose abortion even in cases of rape and incest, some groups were willing to compromise on that issue in order to get laws passed that would severely restrict the number of abortions performed each year. Doug Scott, director of public policy for the Christian Action Council, said that he would feel responsible for the other 99 percent of the abortions performed if he were not willing to work with the system on the 1 to 3 percent of all abortions that are done following rape or incest. Others sided with Nellie Gray,
Still other pro-lifers believed that to applaud the Webster decision, and to scramble to pass more legislation along the lines of the Missouri statute that it upheld, was to skew the pro-life position in an unfortunate direction. Kathleen Hayes,
In 1989, survey results showed that 69 percent of Americans believed that the lives of unborn babies should be protected, and 67 percent believed that a woman should have the right to choose to have an abortion. The American public seemed to oppose both “abortion on demand” and government control of a woman’s reproductive capacity. Such survey results explain why either side in this debate has been capable of winning a majority, as findings depend on how the issue is phrased.
The abortion issue had become extremely polarized as a result of the Supreme Court decision in Roe v. Wade, which effectively removed abortion from the give-and-take of the legislative process. In other developed nations, in which the abortion issue was settled legislatively rather than judicially, political compromises had long since been worked out. Those compromises were remarkably similar to one another and also remarkably similar to what most Americans seem to want, if results of public opinion polls are a reliable indication. The compromises attempted to balance compassion for pregnant women and concern for fetal life.
The abortion issue is morally complex. It involves concerns about life, choice, gender, responsibility, and dependence. Roe v. Wade did not do justice to the complexity of the moral issues involved, nor did it do justice to the complexity of American moral sentiment surrounding abortion. In the Roe decision, the Supreme Court allowed one important value, that of privacy, to take priority over all others. In so doing, it closed the door for sixteen years on the business of weighing and deciding among competing interests and values. Webster v. Reproductive Health Services reopened that door.
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Biskupic, Joan. “Abortion Protagonists Gird for Crucial Court Test: No Matter What the Outcome, a New Flurry of Activity Seems Certain in Congress, State Legislatures.” Congressional Quarterly Weekly Report 47 (April 8, 1989): 753-758. One of the best single articles available on Webster v. Reproductive Health Services, and among the most comprehensive. Describes the case and its history and tells where individual members of Congress, the Supreme Court, the administration, and the states stood on the eve of the decision. Also includes abortion statistics from the Alan Guttmacher Institute. -
Dellinger, Walter. “Day in Court: No One Wins if Roe Is Restricted.” The New Republic, May 8, 1989, 11-12. Expresses the pro-choice side of the debate. Written from a secular point of view. -
Glendon, Mary Ann. “A World Without Roe: How Different Would It Be?” The New Republic, February 20, 1989, 19-20. Insightful article, written by a professor of law at Harvard University, discusses the problems with Roe. Analyzes how Roe v. Wade blocked the normal legislative avenues for debate and discussion on difficult issues. -
Hayes, Kathleen. “Fully Pro-Life.” Sojourners 18 (November 22, 1989). Discussion of the topic of abortion takes a pro-life position that is both nuanced and morally sensitive. -
Lawton, Kim A. “Confrontation’s Stage Is Set: A Supreme Court Decision Marks the Beginning of a New Era in the Abortion Debate, an Era Long Awaited by Abortion Foes.” Christianity Today 33 (August 18, 1989): 36-38. -
_______. “Could This Be the Year? Supreme Court Observers Say the 1973 Roe v. Wade Decision Could Be Restricted—and Perhaps Overturned—This Term.” Christianity Today 33 (April 7, 1989): 36-38. -
_______. “Taking It to the States: In Light of the Supreme Court’s Webster Decision, Pro-life Activists Focus on States as the New Abortion Battlefields.” Christianity Today 33 (November 3, 1989): 36-38. Christianity Today provided the most sustained pro-life coverage of the 1989 challenge to Roe v. Wade and its aftermath. These three articles provide a sample of the periodical’s coverage. -
McGurn, William. “What the People Really Say.” National Review, December 22, 1989, 26-29. Analyzes the abortion debate from a neutral point of view, neither pro-life nor pro-choice in orientation. -
Meeks, Catherine. “To Respect Life.” Sojourners 18 (November 22, 1989). States the pro-life position with a greater degree of moral sensitivity than is often found. -
O’Connor, Karen. No Neutral Ground? Abortion Politics in an Age of Absolutes. Boulder, Colo.: Westview Press, 1996. Focuses on the dilemma of abortion as a political issue. Examines key court cases and events in the history of the abortion debate in the United States. -
Ranck, Lee. “A Special Issue on Abortion.” Christian Social Action 3 (April, 1990): 1-16. Expresses the pro-choice side of the debate. Written from a religious point of view. -
Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. Berkeley: University of California Press, 1997. Examines the history of abortion during the period when it was illegal in the United States and portrays the experiences of women who sought illegal abortions. Draws on court records, police reports, and coroners’ reports, among other sources.
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