Some things haven’t changed: 25 years ago today, the Court tiptoed around Roe

In 1989, I was waiting impatiently for the Supreme Court to issue an important decision. (Sound familiar?) June 30 came and went, and still the Justices hadn’t finished their business – a very unusual situation. Finally, on July 3,  the Court handed down its decision in Webster v. Reproductive Health Services. That was the day I learned that I was foolish to expect the Court to come down solidly one way or another in any abortion decision.

The state of Missouri wanted to restrict the use of state resources for abortion. In the sixteen years since Roe, no significant state restriction on abortion had withstood a challenge. Webster changed that on a 5-4 vote, with the plurality decision written by Chief Justice William Rehnquist. I am oversimplifying here (the case had a plurality opinion, two concurring opinions, and two concurring-in-part-and-dissenting-in-part opinions), but the upshot of Webster was that while abortion was a liberty protected under the Due Process clause of the Constitution, a state need not commit any resources to abortion. From Rehnquist:

“Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions.”

The fact that the Missouri law had a preamble recognizing that life begins at conception was irrelevant to the decision and could be ignored, said Rehnquist, since the preamble was not in itself a law.

I was not the only person walking around saying “huh??” for a couple of days after that one. Portions of the Missouri law were upheld, while Roe itself was left intact – a fact that bothered Justice Scalia no end. From his concurrence, in which he seemed to be holding his nose as he wrote:

“The outcome of today’s case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court’s self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political, and not juridical — a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.”

Justice Blackmun, Roe‘s author, was still on the Court in 1989. He didn’t like the Missouri law one bit, and in his dissent he made sure the world knew it. “For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.”

It’s 2014, and Roe still stands. Over fifty million children have been aborted, according to some estimates. So much for controlling destinies. Chill wind, indeed. Yet Blackmun’s spiritual progeny hold that Roe is in danger of being overturned any minute. Statistics, licensing of abortion facilities, Gosnell-prevention measures, parental involvement: all threaten Roe, according to abortion advocates. All remain subject to one fight after another in state capitols and in courts. And more often than not, in recent years, the right of people to regulate abortion within their states has been affirmed by legislators and judges.

Twenty-five years ago, that was something new.



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