Webster v. Reproductive Health Services

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Webster v. Reproductive Health Services
Seal of the United States Supreme Court.svg
Argued April 26, 1989
Decided July 3, 1989
Full case name William L. Webster, Attorney General of Missouri, et al. v. Reproductive Health Services, et al.
Citations 492 U.S. 490 (more)
109 S. Ct. 3040; 106 L. Ed. 2d 410; 57 U.S.L.W. 5023; 1989 U.S. LEXIS 3290
Prior history Appeal from the United States Court of Appeals for the Eighth Circuit
The Court approved a Missouri law that imposed restrictions on the use of state funds, facilities and employees in performing, assisting with, or counseling on abortions. The Supreme Court thus allowed for states to legislate in an area that had previously been thought to be forbidden under Roe, reversing the Eighth Circuit.
Court membership
Case opinions
Majority Rehnquist (part II-C), joined by unanimous
Majority Rehnquist (parts I, II-A, II-B), joined by White, O'Connor, Scalia, Kennedy
Concurrence Rehnquist (parts II-D, III), joined by White, Kennedy
Concurrence O'Connor
Concurrence Scalia
Concur/dissent Blackmun, joined by Brennan, Marshall
Concur/dissent Stevens
Laws applied
U.S. Const. amend. XIV

Webster v. Reproductive Health Services, 492 U.S. 490 (1989), was a United States Supreme Court decision on July 3, 1989 upholding a Missouri law that imposed restrictions on the use of state funds, facilities, and employees in performing, assisting with, or counseling on abortions. The Supreme Court in Webster allowed for states to legislate in an area that had previously been thought to be forbidden under Roe v. Wade.


The state of Missouri passed a law which in its preamble stated that "the life of each human being begins at conception", and "unborn children have protectable interests in life, health, and well-being."

The statute

  1. required that all Missouri state laws be interpreted to provide unborn children with rights equal to those enjoyed by other persons, subject to limits imposed by the federal constitution, and federal court rulings:
  2. prohibited government-employed doctors from aborting a fetus they believed to be viable;
  3. prohibited the use of state employees or facilities to perform or assist abortions, except where the mother's life was in danger; and
  4. prohibited the use of public funds, employees, or facilities to "encourage or counsel" a woman to have an abortion, except where her life was in danger.

The United States District Court for the Western District of Missouri struck down the above provisions, and prohibited their enforcement. This decision was affirmed by the United States Court of Appeals for the Eighth Circuit, which ruled that these provisions violated Roe v. Wade and later Supreme Court decisions. William L. Webster, then Missouri Attorney General, appealed the decision to the Supreme Court. It was argued before the Court on April 26, 1989.

The Supreme Court's decision[edit]

The Supreme Court overturned the decision of the lower court, stating that:

  1. The court did not need to consider the constitutionality of the law's preamble, as it is not used to justify any abortion regulation otherwise invalid under Roe v. Wade.
  2. The prohibitions on the use of public employees, facilities, and funds did not violate any of the Court's abortion decisions, as no affirmative right to the use of state aid for nontherapeutic abortions existed. The state could allocate resources in favor of childbirth over abortion if it so chose.
  3. Provisions requiring testing for viability after 20 weeks of pregnancy were constitutional, but those limiting abortions in the second trimester of pregnancy were unconstitutional.

The opinions[edit]

Chief Justice William Rehnquist's opinion was joined in its entirety only by Justices Byron White and Anthony Kennedy. In discussing the fetal viability section, the plurality asserted that the right to abortion was a "liberty interest protected by the Due Process clause" subject to restriction by any laws which would permissibly further a rational state interest such as protecting potential life. The plurality said that this would require the court to "modify and narrow Roe and succeeding cases."

Justices Sandra Day O'Connor and Antonin Scalia joined Rehnquist's opinion except for the section on viability testing. Each wrote a separate concurring opinion. O'Connor claimed that narrowing Roe v. Wade in the context of the Webster litigation, where upholding Missouri's law could arguably be squared with Roe, would violate an important principle of judicial restraint. She then explained that she voted to uphold Missouri's law because she did not feel that it would place an undue burden on the right to abortion.

Scalia, who was angered by the refusal of the plurality, especially O'Connor, to overturn Roe v. Wade, wrote a sharp opinion concurring in the judgment. In his concurrence he argued that the Court ought to have overturned Roe, rather than attempting to uphold both Roe and the laws at issue, and he attacked O'Connor's justification for declining to overturn Roe. He also agreed with Blackmun's assertion that the approach of the plurality would make Roe a dead letter.

Blackmun wrote a dissenting opinion which focused on the plurality's desired narrowing of Roe as described in the section on the viability testing requirement. He wrote that the plurality's approach would allow a state to put virtually any restriction on abortion so long as it was rationally related to promoting potential life; and this in effect would overturn Roe. Noting that the plurality and Scalia together were only a single vote away from effectively overruling Roe, he wrote "I fear for the future" and "a chill wind blows."