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.