Webster and the Politics of Abortion

In Webster v. Reproductive Health Services, the Court, in a 5-4 decision, basically upheld a Missouri statute's limitations on the abortion rights of women. The preamble to the statute states that human life

begins at conception, that "unborn children have protectable interests in life, health, and well-being," and that these "unborn children" are entitled to the "same rights as other [constitutionally recognized] persons." The statute requires that, prior to any abortion, a test for viability must be conducted on any fetus believed to be twenty or more weeks old; it prohibits the use of public employees and facilities for performing or assisting in any abortion not necessary to saving the mother's life; and it prohibits the use of public funds, employees, or facilities for the purpose of encouraging or counseling for any abortion not necessary to saving the mother's life.^[6]

Those challenging the constitutionality of the statute argued that it violated the privacy rights of a pregnant woman seeking an abortion, a woman's right to an abortion, the right to privacy between physician and patient, and a woman's right to receive adequate medical advice and treatment concerning abortion.

Although an earlier court of appeals had found that the preamble was unconstitutional in that it tried to establish a "theory of life to criminalize abortions," the Court found the preamble "precatory," meaning that it was merely a recommendation with no requirement and therefore imposed no substantive restrictions on abortions. According to the Court, the preamble is "just" a value judgment, with no real (legal) effect; it does not in and of itself regulate abortion. The focus of the Court was completely narrow here: the preamble constituted a value judgment, and was therefore disconnected from the law itself, which was supposedly not value-laden. The Court also argued that Roe "implies no limitation on the authority of a state to make a value judgment favoring childbirth over abortion."^[7]

The Court further found that the preamble was simply a statement of orientation and preference, not a set of "concrete facts" that the Court could judge. The Court argued that it did not need to decide on the preamble's constitutionality, because as a set of "abstract propositions," it had not as yet been applied in unconstitutional ways. Those challenging the statute argued that the preamble was integral to all the prescribed prohibitions and not merely precatory.

Governmental Responsibility—
Childbirth or Abortion

The heart of the Missouri statute—and the Webster decision—is the provision making it unlawful for a public employee to perform or assist

in an abortion or for a public facility (very broadly defined) to be used to perform an abortion unless the mother's life is in danger. This limitation of abortion rights was found constitutional and consistent with former Court decisions like Maher v. Roe .^[8] In Maher, the Court upheld Connecticut's welfare regulations, under which Medicaid recipients could be covered for medical services related to childbirth but not for non-therapeutic abortion. The Court found that these regulations placed "no obstacles—absolute or otherwise—in the pregnant woman's path to an abortion."^[9] In a similar case entitled Harris v. McRae, the Court upheld the so-called Hyde Amendment, which withheld federal funds under Medicaid programs for reimbursement for abortion unless the mother's life was in danger.^[10] Once again, the Court found that this statute placed no governmental obstacle in the way of a woman's obtaining an abortion. Justice O'Connor further developed this theme in Webster when she restated her position first formulated in Akron Center for Reproductive Health v. City of Akron: "A regulation imposed on a lawful abortion is not unconstitutional unless it unduly burdens the right to seek an abortion."^[11] The problem here, however, is that there is a significant difference in having the right to seek an abortion and having the right to obtain one. The definition of what constitutes an "undue burden" is key to understanding what this difference really means for women.

The Court, in these decisions, upheld the notion that the state's interest is on the side of childbirth, not abortion. As it stated in Maher, "The state may make childbirth a more attractive alternative . . . but it has imposed no restriction on access to abortions that was not already there."^[12] In Webster, the Court further narrowed the meaning of the right to abortion. Instead of focusing on the funding of abortion by Medicaid, the Missouri statute focused on the more indirect support of the right to an abortion: by public employees, public hospitals, or even private hospitals on public land using public water. Its restrictions affect private doctors, private hospitals, and even private clinics, which serve many more women than those who receive welfare assistance. This ruling most starkly affects poor women, who have the fewest options, but it extends to middle-class women as well.

The further significance of this ruling is its place within the 1980s discourse of equality. The neoconservative position on equality is that its true meaning is the individual's right to opportunity before the law, which in this instance would be the individual, legal right—a "privacy" right—to choose an abortion. Privacy does not extend to an individual's

equal right to get an abortion—equal access to abortion—but only to the private opportunity to choose one. According to many neoconservatives, the wrong-headed presumption of a right to equal access to abortion reflected the excessive demands of the women's movement. Neoconservative jurisprudence has made it clear that the government should never have gotten involved in the business of "affirmative" action, either in the job market or in the area of abortion.

It should not have been surprising, therefore, when Rehnquist, writing for the Court in Webster, stated that the "Due Process Clauses generally confer no affirmative right to government aid . . . even . . . to secure life, liberty, or property interests."^[13] Women have no affirmative right to governmental support of abortion: hence the prohibition on public employees and facilities. The core of the Webster decision is that the state no longer has any affirmative role or responsibility in abortion. The state's responsibility is to affirm childbirth and make it the more attractive alternative. One could say the Court's new preoccupation with reverse discrimination has extended into the realm of abortion: protecting the rights of the fetus against the rights of the pregnant woman.

Rehnquist argued for the Court majority that Missouri's decision to use public facilities and employees to "encourage childbirth over abortion" does not create governmental obstacles for a woman who "chooses" to end her pregnancy. "[It] leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all." He continues, "Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor . . . do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions."^[14] These statements by the Court establish the state's interest in making childbirth the preferred alternative to abortion.

This neoconservative position is contradictory at best. The state is establishing an affirmative role: it is affirming a nonabortion stance. To encourage childbirth is to dis courage abortion. The Court views the lack of governmental support in performing abortions—in the form of the use of public hospitals or staff—as the state of Missouri's pro-childbirth stance. This lack of government support for abortion is both affirmative action on behalf of the fetus and prohibitive action against a majority of women seeking abortions. In some sense, my use of "affirmative action" here is a misnomer, because the Court does not give the fetus rights to anything except birth, and the fetus is even denied that in cases where women cannot afford prenatal care. Actually, the state

"gives" nothing—rather, it takes away. In the end, the Webster decision has dismantled any "affirmative action" by government to support women's reproductive rights. It remains a woman's private right to seek an abortion, but the government does not have to say it likes it, nor does the state have any responsibility in making it available.

On the one hand, the antigovernment discourse of a privatized service state is being used to deny access to abortion. On the other hand, we are subject to a statist-moralist-antiabortion interventionism from this same government. It is the very privatized discourse of the Reagan-Bush era that undermines women's ability to act on their (private) choices. The discourse covers over statist activism that invades women's private right of choice.

Rehnquist argues that the Missouri provisions that were challenged "only restrict a woman's ability to obtain an abortion to the extent that she chooses to use a physician affiliated with a public hospital."^[15] According to him, this limitation is in full keeping with McRae and is less burdensome than not allowing public funding. Although the limitations provided in the Missouri statute may be less burdensome, they are more far-reaching because they affect more women. Moreover, this further narrowing of the access to abortion takes place within the context of a rightist and neoconservative Court. Ronald Dworkin sees these Missouri restrictions as out of keeping with earlier decisions and restrictive in unacceptable ways. Dworkin argues that "a city cannot force newsstands in shopping centers built on public land to sell only papers it approves. It cannot force theatres it supplies with water and power and police protection to perform only plays it likes."^[16] He concludes that a city should not be able to refuse abortions on these grounds, either. To do so is to distort the meaning of government support. There is also an ambiguity here between the supposed noninvolvement of the state and its imposition of far-reaching regulations. According to the neoconservative Court, regulation occurs at the level of individual states. However, the enabling of such regulation occurs at the federal level: the laissez-faire state.

Viability, Privacy, and The State

The Missouri statute in Webster requires testing of all twenty-week-old fetuses to determine gestational age, weight, and lung maturity in order to establish fetal viability. The statute requires that no abortion of a "viable unborn child" be performed unless it is necessary to preserve

the life or health of the woman. The Court found viability testing at twenty weeks constitutionally acceptable in that it is consistent with the state's interest in protecting potential human life, even though there is strong medical evidence that viability does not occur until twenty-four to twenty-eight weeks of gestation.^[17]

In reviewing the issue of viability testing, the Court attacked the trimester framework established in Roe as unworkable. It extended and broadened the state's interest by allowing this intervention in the second trimester of pregnancy, whereas in Roe the woman's right of privacy precluded any state regulation until the third trimester. Rehnquist, writing for the Court plurality, justified this change by asserting that the state's interest in childbirth is equally compelling before and after viability, and that Roe had set up "unsound and unworkable" guides.

Blackmun, in his dissent, attacked this rejection of the viability standard and of the trimester framework. He argued that the viability standard effectively and sensibly operates "to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the state's interest in potential human life."^[18] The point of viability distinguishes between the point where the fetus has rights (like a person) which may override the woman's right to choice and the point where it has no such rights. Blackmun, concurring with Stevens, wrote that "the development of a fetus—and pregnancy itself—are not static conditions, and the assertion that the government's interest is static simply ignores this reality."^[19] Viability testing at twenty weeks is in flat contradiction with Roe in that it assumes the state's interest in potential life is compelling before viability.^[20]

Rehnquist further rejected the Roe trimester framework as rigid and not consistent with the Constitution, which is cast and written in general terms, articulating general interests. The trimester framework is unnecessarily specific, he argued, and is not found anywhere in the text of the Constitution; it resembles "a code of regulations rather than a body of constitutional doctrine." Roe had unnecessarily made the law "increasingly intricate."^[21]

Rehnquist's insistence on the generality of the "body" of constitutional doctrine is more than instructive on the gender bias of his constitutional text. To the degree that the Constitution masquerades as gender neutral, it speaks in general terms while silently assuming the male body as the individual with protected rights. This silencing feigns neutrality through nonspecificity. Given a male individual as the starting point, it is not surprising that pregnant women are not mentioned in

the Constitution. The rights of the individual have been specified for nonpregnant persons, not pregnant women.^[22] The trimester framework—or some such device—is necessary to specify the rights of the individual who is pregnant . Specificity here is a needed corrective.

When Rehnquist insists on a close "textual" analysis, he ignores the fact that in order for the Constitution to effectively meet the needs of men and women, differences of rights must be specified when they occur. Otherwise, women's specific rights to privacy and equality within the realm of pregnancy will be denied, effectively violating her right to equal and similar (though not the same) treatment. But Rehnquist believes that women should not be granted similar rights (to those of men) in the instance of pregnancy. In earlier decisions, such as Michael M. v. Superior Court (1981), he argued that the "real" differences between men and women require differential treatment.^[23] Rehnquist feigns the so-called neutrality and generality of the text of the Constitution. But his reading of the text is definitely not neutral. Dworkin remarks similarly that if we can look to the Constitution only for "enumerated rights explicitly mentioned in the text," then the rights of the fetus are not mentioned in the text either.^[24]

On a much simpler level, Rehnquist is inconsistent. He argues that the general right to privacy was established in Griswold v. Connecticut,^[25] but that in Roe it was interpreted to become overly regulatory and rigid. However, the Court has regulated and specified other constitutional rights, such as free speech—limiting speech such as pornography or screaming "Fire!" in a crowded theatre. Perhaps Rehnquist and his associates believe that the existing regulations on abortion within the trimester framework allow women too much privacy. They allow women to decide about their lives—as though they were men—to become not-pregnant.

For Rehnquist, abortion is not a fundamental right or even a "limited constitutional right," as established in Roe, but a "liberty interest protected by the Due Process Clause."^[26] As such, the privacy of a woman in an abortion decision can be limited by governmental restrictions in order to protect "potential human life." Webster broadens the assumed moral authority of the state while denying its responsibility to create access. It narrows the woman's alternatives and authority over her own choices and often makes her responsible for caring for a(nother) child when she does not want to do so. In a contradictory way, the Court has expanded governmental authority and rearticulated its responsibility in defense of the fetus, while severely curtailing women's choices.

Neoconservative jurisprudence has reestablished a more authoritarian relationship between the state's authority and the individual. In this case, the individual is a pregnant woman. In rejecting the trimester framework, the Court broadened the state's authority to include the entire term of pregnancy and prioritized the rights of the fetus over the privacy rights of women. Reestablishing the authority of the state—against the excesses of individual rights (especially the right to privacy)—is a primary focus of rightist neoconservatism. It is what Bertram Gross has critically called the establishment of "friendly fascism."^[27] It is what evangelical antiabortionists call the "right to life": the state's establishment of its authority over the woman via the rights of the "unborn."

Blackmun, in his dissent, stated that the plurality opinion in Webster "is far more remarkable for the arguments that it does not advance than for those that it does." The Court pretended to leave Roe standing, but refused to discuss what Blackmun considered to be the real issue underlying the case: "Whether the Constitution includes an unenumerated right to privacy that encompasses a woman's right to decide whether to terminate a pregnancy."^[28] Instead, the neoconservative plurality argued specifically that the trimester framework does not appear in the Constitution, thereby undermining women's right to privacy without directly repudiating it.

The rightist neoconservatism of the Court set the context for its silence on this point. Privacy—and one's right to it—is an aspect of liberal individualism that has been central to public discourse. Although the neoconservatism of the Reagan-Bush era, with its critique of the "excesses of liberalism," successfully denounced liberalism as the "L" word, the right to individual privacy remains successfully embedded in public discourse and consciousness. When a woman's right to abortion is phrased in terms of her private right to choose, there is overwhelming support for it among the public. When abortion is placed within a neoconservative discourse which criticizes governmental funding, public support of the right to abortion, though still significant, lessens.

The Court's silence on certain issues that Blackmun points out takes on considerable import when one realizes the diminishment of women's actual ability to obtain an abortion even as the Court still supposedly upholds abortion as a fundamental right of privacy. Justice O'Connor does not see viability testing as being in conflict with any of the Court's earlier decisions, including Roe, so she argues that the Court cannot be asked "to anticipate a question of constitutional law in advance." She

also states that the Court should not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."^[29] In her view, if and when a state's abortion statute actually tests the constitutional validity of Roe v. Wade, there will be ample time to address it then.

But Roe has been undermined in its practice and its effect. The Court's political discourse has changed significantly as well, even though the Court did not make "a single, even incremental, change in the law of abortion."^[30] One must wonder where Roe, as law, begins and ends in relation to the political discourse within which it is interpreted and applied.

Justice Scalia and Chief Justice Rehnquist stand to the right of the neoconservatism of the Court. They call for the overruling of Roe as unconstitutional. Scalia's angry dissent in Webster was directed at O'Connor, because of her attempt to narrow the Court's protection of access to abortion while guiding the Court away from a review of Roe . O'Connor is somewhat more cautious in discussing Roe than the others of the plurality have been. She appears to recognize a legal right to abortion as long as the state is completely absent in endorsing it, either indirectly or directly. Scalia rejects O'Connor's view of judicial restraint, arguing for an aggressive court that will speak broadly on the issue of Roe . He argues that O'Connor protects Roe in contradictory fashion because Roe established a "broader-than-was-required-by-the-precise-facts structure."^[31] O'Connor obviously does not agree.

This redefinition recognizes women's opportunity for privacy in the realm of abortion. But that opportunity remains within the purview of individual freedom of choice, not governmentally provided access. Within this context, the "undue burden" standard has extremely limited effect, because almost no burden seems too great. It is not until the Court's decision in Hodgson v. Minnesota that the troubling contours of "undue burden" begin to be clarified.^[32]