The Road to Moderation: The Significance of Webster for Legislation Restricting Abortion

Webster v. Reproductive Health Services, No. 88–605, 109 S.Ct. 3040 (1989).

Id. at 3067 (Blackmun, J., concurring in part, dissenting in part).

“Historic Court Ruling Will Widen Disparity in Access to Abortion” Wall St. J., July 5, 1989: A1 (” ‘It was a vicious ruling,’ says Leah Sayles, a pro-choice activist…”); id. at A14 (“frightening”); “Supreme Court Restricts Right to Abortion, Giving States Wide Latitude for Regulation,” Washington Post, July 4, 1989, at A1, A4 (“not possible to exaggerate,” “bloody battle” etc.).

“As Abortion Rights Groups Rally Support, Foes Set Legislative Drive in 4 States” Washington Post, July 5, 1989, at A10; “Both Sides in Abortion Battle Claim Moral High Ground” S.F. Chronicle, July 4, 1989, at A13.

See generally Wardle L. Wood M. , A Lawyer Looks At Abortion, Provo: Brigham Young University Press, 1982:30.

See generally Delapenna J. , “The History of Abortion: Technology, Morality, and Law,” U. Pitt. L. Rev. 1979, 40: 359, 389–407. When Sir William Blackstone published his Commentaries On The Law Of England in 1756, on the eve of the American Revolution, he summarized the rights of the unborn and the existing common law of abortion as follows:

Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offense in quite so atrocious a light, but merely as a heinous misdemeanor. See generally Wardle L. Wood M. , supra note 5, at 29; citing Blackstone, Commentaries on the Laws of England I: 130, 131.

410 U.S. 113 (1973).

For example, three years after Roe, the Supreme Court reaffirmed the anti-regulation principle and extended it in Planned Parenthood v. Danforth, 428 U.S. 52 (1976), holding unconstitutional state laws requiring parental consent to abortion and spousal consent to abortion, and restricting the use of controversial saline amniocentesis abortion methods after viability. Three years later, the Court again reaffirmed and emphasized its hostility toward abortion regulations by striking down a Pennsylvania statute requiring doctors performing abortions on viable fetuses to exercise necessary care and use the safest abortion method to preserve the life of the fetus. Colautti v. Franklin, 439 U.S. 379 (1979). That same year, the Court invalidated a Massachusetts law requiring parental notification of and participation in the abortion decision of a minor child. Bellotti v. Baird, 443 U.S. 622 (1979).

For the bills enacted from 1973 to 1984, see Wardle L. , ‘Rethinking Roe v. Wade,’ 1985 B. Y. U. L. Rev. 1985: 231, 247 n.83. For the period since then see From the world beyond Washington, Planned Parenthood—World Population, Washington Memo, New York: Alan Guttmacher Institute, Jan. 14, 1986: 5 (hereinafter “Washington Memo”) (in 1985 18 separate abortion bills were enacted by state legislatures); Washington Memo, Jan. 21, 1988: 7 (in 1987 eight pieces of abortion legislation were enacted by state legislatures); Washington Memo, Jan. 12. 1989: 4 (in 1988 nine separate pieces of abortion legislation were enacted by state legislatures), Washington Memo, June 2, 1989: 2. The fervency of the legislative debate is further demonstrated by the bills introduced, but not passed, by state legislatures. For example, in 1988, 200 bills regulating abortion were introduced in state legislatures, but only nine were enacted into law that year. Washington Memo, Jan. 12, 1989: 4.

These state statutes are listed, in 15 categories, in Appendixes A-1 to A-15 of Brief for 127 Members of the Missouri General Assembly As Amici Curiae Supporting Appellants, Webster v. Reproductive Health Services, No. 88–605. (July 3, 1989).

Id., Appendix B. Most of these are restrictions on public funding or promotion of abortion in public programs.

“Although the law of abortion remained static for centuries, it has changed profoundly since 1967.” “A Survey of the Present Statutory and Case Law on Abortion: The Contradictions and the Problems” U. Ill. L. Forum 1972: 177, 178.

At least one other state legislature (Mississippi) adopted abortion reform legislation that did not go quite as far as the proposed Model Penal Code. Id. Just one year before Roe v. Wade was decided, the author of the survey of abortion law reported that 25 states prohibited abortion except when necessary to preserve the life of the mother; five states prohibited abortion except when necessary to preserve the life of the mother or unborn child; one state prohibited abortion except when necessary to preserve the life of the mother, or if she was raped; two states prohibited abortion except when necessary to preserve the life of the mother or health of the mother; 11 states had adopted the Model Penal Code prohibition of abortion with the three “hardcase” exceptions; and four states allowed abortion for any reason until some point near quickening or viability. Id. In 1972 one more state legislature, in Florida, adopted the Model Penal Code, as had Delaware earlier (apparently missed by the writer of the previously cited article).

Also, Washington enacted a similar law through the popular-referendum method.

See Roe v. Wade, 410 U.S. at 146–48, nn. 40 and 41.

See generally, Wardle and Wood, supra note 5, at 42–43.

“Most in US favor ban on majority of abortions, poll finds” Boston Globe, Mar. 31, 1989: A1 (approval rate for the three hard cases ranged from 52–86 percent; opinion in favor of making abortion illegal for nine “soft reasons” ranged from 64 to 93 percent, while 50 percent wanted to outlaw abortion for minors).

“Poll on abortion finds the nation is sharply divided” New York Times, Apr. 26, 1989: A1. (49 percent also favored leaving abortion legal as it is now, while 48 percent wanted to make abortion legal in only certain cases, or not legal at all [9 percent]).

“Most Americans consider abortion immoral” Los Angeles Times, Mar. 19, 1989: 1.

Rossi Sitarman , “Abortion in context: Historical trends and future changes,” Fam. Planning Perspectives 1988, 20: 273, 274, Fig 1. Beginning in 1977, the NORC survey also asked whether abortion should be legal “if the woman wants it for any reason?” The percentage of respondents who answered “Yes” to that question, not plotted in the graph, were 36 percent in 1977, 35 percent in 1987, and ranged as high as 39 percent (1980, 1982) and as low as 32 percent (1978, 1983).

See supra notes 12–16 and accompanying text.

Glendon M. , Abortion and Divorce in Western Law, Cambridge: Harvard University Press, 1987:67.

Id. at 48.

Id. at 48–49.

Schneider , “Moral Discourse on the Transformation of American Family Law,” Mich. L. Rev. 1985, 83:1803, 1807–08, 1809–11.

Id. at 1814–15.

Id. at 1816–17.

Id. at 1817–19.

Id. at 1812–14.

Glendon , supra note 22, at 49.

Id. at 40.

Id. at 14, Table 1. To the first category of “middle” jurisdictions, could now be added another country, Canada, whose supreme court ruled in 1988 that a prohibition of abortion in early pregnancy is impermissible.

Id. at 49.

See generally, Roe, 410 U.S. at 141–45; Dellapenna , supra note 6.

Otten , “Technological advances in the science of birth alter setting of high court's abortion ruling,” Wall Street Journal, June 28, 1989: At A18.

Glendon , supra note 22, at 49–50.

Griswold v. Connecticut, 381 U.S. 479, 484 (1965)

Forsythe C , “Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms,” Valparaiso L. Rev. 1987, 21: 563–78.(1987).

Planned Parenthood for years has run advertisements proclaiming that if anti-abortion legislation is permitted, “If you [pregnant women] have a miscarriage, you could be prosecuted for murder,” (The Washington Post, April 27, 1981: A28) and asking “How would you like the police to investigate your miscarriage.” (Time, March 20, 1989: 57. See also supra note 3.)

United States Holte v., 236 U.S. 140, 145 (1915); id. at 148 (Lamar, J. and Day, J., dissenting) (“[I]n prosecutions for abortion the woman does not stand legally in the situation of an accomplice, for although she no doubt participated in the immoral offense imputed to the defendant, she could not have been indicted for the offense. The law regards her as the victim rather than the perpetrator.’“) In the Holte case, the majority held that a woman who was transported in violation of the White Slave Traffic Act could be convicted of conspiracy, even though she could not be convicted of the underlying substantive offense, or of being an accomplice. See further, United States v. Vuitch, 305 F. Supp. 1032, 34 (D.D.C. 1969).

Wohlers P. , Women and Abortion, Prospects of Criminal Charges, Washington D.C.: The American Center for Bioethics, undated.

Id. at 1–4.

See generally, New York Times, July 31, 1962: 1 at 9.; Finkbine , “The lesser of two evils,” in The case for legalized abortion now, ( Guttamacher A. , ed. Berkeley: Diablo Press, 1967: 15–24. Wardle L. and Wood M. , supra note 5, at 36–39.

109 S.Ct. at 3058; id. at 3073, 3078 (Blackmun, J. dissenting in part); id. at 3081–82 (Stevens, J., dissenting in part).

Id. at 3059–60, 3063 (O'Connor, J., concurring).

Id. at 3082, 84 (Stevens, J., dissenting in part).