The Supreme Court’s decision in Roe v. Wade (1973) struck down abortion laws in 46 of the 50 states. Conservative opponents of the decision became concentrated in the Republican Party, whose leaders began to pledge to appoint justices would overturn the decision. After being elected in 1980, Ronald Reagan was able to replace three justices who were part of the original seven-to-two majority, and William Rehnquist (who dissented in Roe) was promoted to chief justice. The appointment of Anthony Kennedy created the strong possibility that the Court would vote to overturn Roe, and in Webster v. Reproductive Health Services the Reagan administration filed an amicus brief asking the Court to do so. The administration was not alone in filing a brief; with the potentially momentous stakes of the case clear to both pro-choice and pro-life activists, seventy-eight amicus briefs were submitted.
The case involved four provisions of a Missouri statute that were struck down by a federal district court as being inconsistent with Roe v. Wade: (1) a preamble that declared that life began at conception, (2) a prohibition on abortion counseling by public officials and a denial of public funds for abortions not related to the life of the mother, (3) a requirement that all abortions performed after the fifteenth week be performed in state hospitals, and (4) a requirement that doctors perform tests to determine if the fetus was viable. The U.S. Court of Appeals for the Eighth Circuit argued that the denial of public funding was constitutional under Harris v. McRae (1980), but otherwise affirmed the judgment of the district court.
The initial strategy of Chief Justice Rehnquist was to propose an opinion that would uphold the Missouri law and implicitly but not explicitly overrule Roe. Perhaps in an attempt to secure the crucial swing vote of Sandra Day O’Connor, Rehnquist proposed replacing the ‘‘trimester framework’’ of Roe with a standard that would permit any state regulation that reasonably furthered ‘‘the state’s interest in fetal life,’’ but argued that because the regulations of the Missouri law were constitutional under the new standard there was no need address the question of whether Roe remained good law. Rehnquist’s strategy, however, failed, as it was widely recognized that the new standard would permit virtually any regulation of abortion. O’Connor, while willing to replace the ‘‘trimester framework,’’ argued for a standard that would permit abortion regulations that did not constitute an ‘‘undue burden.’’ Nor did the attempt to avoid overturning Roe directly fool Roe’s strong supporters on the Court. John Paul Stevens circulated a memo angrily criticizing Rehnquist’s opinion: ‘‘As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.’’
The ultimate result, then, was a divided court that left the status of Roe undecided. Rehnquist’s plurality opinion—which was joined fully by only Kennedy and White—upheld the Missouri law while arguing that ‘‘[this] case ... affords us no occasion to revisit the holding of Roe.’’ O’Connor filed a concurrence defending her ‘‘undue burden’’ standard, while arguing that the Missouri law did not conflict with the relevant precedents. Antonin Scalia filed an angry concurrence, arguing that Roe should be overturned explicitly, and that ‘‘[o]f the four courses we might have chosen today—to reaffirm Roe, to overrule it explicitly, to overrule it sub silentio, or to avoid the question—the last is the least responsible.’’ Stevens joined the Court in upholdingMissouri’s denial of public funding (while arguing that the ban on counseling was moot because the plaintiffs had withdrawn their complaint), but otherwise dissented, arguing that the other abortion regulations were inconsistent with Roe and that the preamble was inconsistent with the establishment clause. Blackmun—joined by Marshall and Brennan—dissented bitterly, arguing that the Missouri law conflicted with his most famous opinion and that the plurality opinion would effectively overrule Roe. He concluded with a grim prognosis for the future of Roe: ‘‘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.’’
With another opponent of Roe in the White House, Blackmun’s analysis of its prospects seemed persuasive to all sides of the debate surrounding the right to choose, but Roe proved more durable than its opponents hoped and its supporters feared. In 1992, the Court in Planned Parenthood v. Casey would explicitly affirmRoe, usingO’Connor’s ‘‘undue burden’’ analysis.
References and Further Reading
Cases and Statutes Cited
See also Abortion;Harris v.McRae, 448 U.S. 297 (1980); Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992); Reproductive Freedom; Roe v.Wade, 410U.S. 113 (1973)