1 Turnock v. Ragsdale, 841 F.2d 1358 (7th Cir. 1988), juris, postponed, 57 U.S.L.W. 3859 (U.S. June 27, 1989) (No. 88-790), is an Illinois case challenging a restrictive licensing scheme imposed on out-patient abortion clinics. The Illinois statute at issue requires that doctors, who wish to perform even one abortion on an out-patient basis, turn their offices into mini-hospitals by conforming to certain architectural specifications and by providing certain facilities and equipment. The record in the case proves that these regulations do nothing to improve the health of women. Rather they increase the cost of first and early second trimester abortions to such an extent that women are unable to obtain abortions because physicians are financially unable to provide them at a reasonable cost. Because many providers who would otherwise meet the current medical standards for out-patient services would have to close down under these regulations, the Seventh Circuit held that they were an unconstitutional burden on a woman's right to choose abortion. Hodgson v. Minnesota, 58 U.S.L.W. 3034 (U.S. July 3, 1989) (Nos. 88-1125, 88-1309) and Ohio v. Akron Center for Reproductive Health, 57 U.S.L.W. 3859 (U.S. June 27, 1989) (No. 88-805), challenge state statutes that require either parental notification or a court order for a minor to obtain an abortion. Thirtyone states have parental involvement statutes, although fourteen of these have been enjoined or are not enforced. These requirements effectively foreclose abortion for many pregnant teenagers. Young women from dysfunctional families who are unable to tell their parents or to navigate the intimidating and unwieldy state court system are particularly affected. Relying on the theory that biological parents possess rights to control their children, Minnesota seeks to validate a statute that requires the minor to notify both of her parents of her abortion decision, even if they are absent, divorced or never married. The statute is currently enjoined pending Supreme Court review. However, when in effect for almost five years, the statute caused increases in both the teenage birth rate and the number of hazardous second trimester abortions, and shifted the focus of pregnancy counseling from the actual medical and emotional needs of teenagers to the terrors and anxieties of parental notification or court proceedings. The Ohio case challenges the validity of a court by-pass system that fails to protect adequately a minor's rights’ to anonymity and an expeditious court decision.

2 410 U.S. 113 (1973).

3 109 S. Ct. 3040 (1989).

4 Question 7 of the Questions Presented For Review asked should the Roe v. Wade trimester approach for selecting the test by which state regulation of abortion services is reviewed be reconsidered and discarded in favor of a rational basis test? Although the Solicitor General had urged both restrictions on and reversal of Roe in both City of Akron v. Akron Center for Reproductive Health Inc., 462 U.S. 416 (1983) and Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986), appellants had not placed the issue directly before the Court. See Briefs Amici curiae on behalf of the United States in Support of Appellants, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989). Intervention by William Bradford Reynolds, Chief of the Justice Department's Civil Rights Division during the Reagan presidency, however, ensured that Missouri explicitly questioned the validity of Roe in Webster. See Moore, Lobbying the Court, Nat'l Journal, Apr. 15, 1989, at 910-11.

5 Setting the record for the greatest number of briefs filed in a single case, amici curiae and the parties on both sides of the issue flooded the Court with 78 briefs. The previous record of 58 briefs was filed in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1977).

6 For example, on April 9, 1989, over 300,000 persons marched for abortion rights in Washington, D.C. Right to Abortion Draws Thousands to Capitol Rally, N.Y. Times, Apr. 10, 1989, at Al, col. 6.

7 See infra pp. 157-67.

8 Brief for Appellees and thirty-one briefs for amici curiae, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

9 Since the Supreme Court's decision in Roe v. Wade, the number of induced abortions has roughly doubled from approximately 750,000 to nearly 1.6 million a year. See Henshaw, , Forrest, & Van Vort, , Abortion Services in the United States, 1984 and 1985, 19 Fam. Plan. Persp. 63, 64 (1987)CrossRefGoogle Scholar.

10 The Court accepted the case on January 9, 1989, 57 U.S.L.W. 3451, and Amici briefs in support of appellees were filed on March 30, 1989.

11 See, e.g., Brief for a Group of American Law Professors as Amicus Curiae in Support of Appellees; Brief for Bioethicists for Privacy as Amicus Curiae Supporting Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

12 See, e.g., Brief Amici Curiae of the American Civil Liberties Union, the National Education Association, People for the American Way, the Newspaper Guild, the National Writers Union and the Fresno Free College Foundation, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

13 See, e.g.. Brief for Certain Members of the Congress of the United States as Amicus Curiae in Support of Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

14 See American College of Obstetricians & Gynecologists v. Thornburgh, 699 F.2d 644, 645 (3rd Cir. 1984) (denying motion to file amici curiae) (Higginbotham, J., dissenting), aff'd, 476 U.S. 747 (1986).

15 Sup. Ct. R. 36, 433 U.S. 350 (1977).

16 See Stern & Gressman, Supreme Court Practices in Supreme Court Litication 724 (1978). Routinely, counsel for the parties in Supreme Court litigation agree to the participation of amici. If forced to petition for permission to file, the Court rarely forbids amici participation. But see City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) (petitions of Alan Ernst denied); Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986); Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

17 See Brief of the American Medical Association; Brief of American Nurses Association; Brief of 157 Distinguished Scientists; Brief of Association of Reproductive Health Professionals; Brief of National Association of Public Hospitals; Brief for Bioethicists for Privacy; Brief of the National Family Planning and Reproductive Health Organization, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

18 See Brief of American Civil Liberties Union; Brief of American Library Association; Brief of Americans for Democratic Action, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

19 See Brief for a Group of American Law Professors, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

20 See Brief for the Amici Curiae Women Who Have Had Abortions and Friends of Amici Curiae in Support of Appellees; Brief of Seventy-Seven Organizations Committed to Women's Equality as Amici Curiae in Support of Appellees; Brief for the National Coalition Against Domestic Violence as Amicus Curiae Supporting Appellees; Brief for the National Organization for Women as Amicus Curiae Supporting Appellees; Brief for California National Organization of Women as Amicus Curiae Supporting Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

21 See Brief Amici Curiae of the National Council of Negro Women, Inc., Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

22 See Brief of Americans United for Separation of Church and State as Amicus Curiae in Support of Appellees; Brief Amicus Curiae for American Jewish Congress and other religious groups; Brief for Catholics for a Free Choice, Chicago Catholic Women, National Coalition of American Nuns, Women in Spirit of Colorado Task Force, et al. as Amici Curiae in Support of Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

23 See Brief of Amici Curiae National Association of Women Lawyers and National Conference of Women's Bar Associations in Support of Appellees; Brief for Certain Members of the Congress of the United States as Amicus Curiae in Support of Appellees; Brief of the Attorneys General of the States of California, Colorado, Massachusetts, New York, Texas, Vermont and as Amici Curiae in Support of Appellees; Brief of Amici Curiae on Behalf of 608 State Legislators from 32 States; Brief Amici Curiae of the Committees on Civil Rights, Medicine and Law, and Sex and Law of the Association of the Bar of the City of New York and Others on Behalf of Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

24 See Brief Amici Curiae in Support of Appellees by Center for Population Options, The Society For Adolescent Medicine, The Juvenile Law Center, and The Judicial Consent For Minors Referral Panel; Brief for Amicus Curiae American Psychological Association in Support of Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

25 See Brief of Amici Curiae International Women's Health Organizations in Support of Appellees; Brief of Canadian Women's Organizations, Amici Curiae in Support of Appellees; Brief for Population-Environment Balance and other organizations as Amici Curiae Supporting Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

26 See Brief of 281 American Historians as Amici Curiae Supporting Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

27 See infra pp. 169-203; see also Coyle & LaVelle, Full Court Press, Nat'l. L.J., May 1, 1989, at 1, col. 1.

28 Chief Justice Rehnquist wrote the plurality opinion for three Justices of the Court. Justices O'Connor and Scalia wrote separate opinions concurring in part and in the judgment. Justices Blackmun and Stevens wrote separate opinions concurring in part and dissenting in part.

29 Mo. Rev. Stat. § 1.205.1(1) (1988). For the limitations on this holding, see infra pp. 161-63.

30 Id. at § 188.210.

31 Id. at § 188.029.

32 Id. at §§ 188.205, .210, .215.

33 109 S. Ct. at 3053-54; id. at 3060 (O'Connor, J., concurring); id. at 3064 (Scalia, J., concurring); id. at 3069 (Blackmun, J., concurring in part, dissenting in part); id. at 3079 (Stevens, J., concurring in part, dissenting in part).

34 Id. at 3058.

35 Id. at 3056 (citations omitted).

36 Id. at 3058.

37 See id. at 3067 (Blackmun, J., concurring in part, dissenting in part); see also supra note 2.

38 410 U.S. at 170 (1973).

39 Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 792-93 (1983) (White, J., dissenting).

40 462 U.S. 416, 452-59 (1983) (O'Connor, J., dissenting).

41 476 U.S. at 828-29 (O'Connor, J., dissenting) (noting that state has compelling interest throughout pregnancy).

42 In Roe, the Court permitted regulation in the second trimester which would further the state's interest in protecting the health of the woman, on the theory that by the second trimester, abortion was as dangerous as carrying the pregnancy to term. Roe, 410 U.S. at 163. In Akron, when striking down the rule that all second trimester abortions be performed in hospitals, the Court acknowledged that abortions are safer than childbirth at least through the 16th week of gestation, and that a rule prohibiting outpatient procedures could not further the state's interest in maternal health. Akron, 416 U.S. at 436-37. Today, although both abortion and childbirth are considerably safer than in 1973, abortion poses significantly fewer risks of morbidity and mortality at all stages of gestation. See Henshaw, Forrest & Van Vort, supra note 9, at 64; Brief of the American Medical Association, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

43 Justice O'Connor found that a regulation “imposed on ‘a lawful abortion’ is not unconstitutional unless it unduly burdens the right to seek an abortion. In my view, this ‘unduly burdensome’ standard should be applied to the challenged regulations throughout the entire pregnancy without reference to the particular stage of pregnancy involved. If the particular regulation does not ‘unduly burden’ the fundamental right, then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose.” Akron, 462 U.S. at 1053, 1454 (citations omitted).

44 See Law, , Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955 (1984)CrossRefGoogle Scholar; Brief of 167 Distinguished Scientists at 8-16.

45 484 U.S. 171 (1987). This decision carries no precedential value.

46 Address by Professor Anthony Kennedy, Canadian Institute for Advanced Legal Studies, Unenumerated Rights and the Dictates of Judicial Restraint, July 24 - Aug. 1, 1986 (available in Stanford Law School Library).

47 Id. at 13-14. In this same speech Justice Kennedy argued that certain unenumerated rights, such as the right to travel and the right to vote, must be granted constitutional protection despite the absence of explicit language which creates these rights. However, he failed to articulate why rights to privacy did not attain a similar status. Id. at 4-6, 14-16.

48 The positions of Justices Blackmun, Brennan, Marshall and Stevens have unwaveringly supported constitutional protection for the abortion choice since 1973. See, e.g.. Roe v. Wade, 410 U.S. 113 (1973) (Blackmun's opinion); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (Blackmun's opinion); id. at 772 (Stevens, J., concurring); Harris v. McRae, 448 U.S. 297, 329 (1980) (Brennan, J., dissenting); H.L. v. Matheson, 450 U.S. 398, 425 (1981) (Marshall, J., dissenting).

49 Mo. Rev. Stat. § 188.029 (1988).

50 Webster, 109 S. Ct. at 3054-55. This limited reading of the statute was more restrictive than the construction suggested by Missouri.

51 See Brief for Appellees at 26-30 and citations listed therein.

52 Only a small number of abortions (less than 1 %) are performed in Missouri past the 20th week of gestation. The operation of the ban on funding for public facilities will reduce this number appreciably because Truman Medical Center in St. Louis which performed 97% of all hospital abortions at 16 weeks or greater in Missouri has been forced to close its abortion services. See Jurisdictional Statement at A5 n.57, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

53 Webster, 109 S. Ct. at 3050.

54 432 U.S. 464 (1977).

55 448 U.S. 297 (1980).

56 Webster, 109 S. Ct. at 3050.

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

58 See id. at 3068 n.1 (Blackmun, J., concurring in part, dissenting in part); id. at 3080-81 (Stevens, J., concurring in part, dissenting in part); see also Deaconess Hosp. v. McRoberts, No. 874-00172 (Mo. Cir. Ct., St. Louis County, May 21, 1987).

59 Several of the amici briefs directly addressed the problems for women's autonomy of permitting independent constitutional protection for fetal interests. See, e.g., Brief of Seventy Seven Organizations Committed to Women's Equality as Amici Curiae in Support of Appellees; Brief for a Group of American Law Professors as Amicus Curiae in Support of Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

60 432 U.S. 519 (1977).

61 Webster, 109 S. Ct. at 3050-53. Justice O'Connor suggested, however, that a situation might arise in which the ban on the use of public facilities would operate in an unconstitutional manner. Id. at 3059-60. (O'Connor, J., concurring).

62 Under Maher, Poelker and Harris, states were free to promote childbirth over abortion by withholding public funds for abortions or by prohibiting public hospitals and staff at those hospitals from performing abortions. But under Webster, even private doctors who perform abortions on private patients paying for services with private funds will be affected if their admission privileges happen to be at a hospital or other medical facility that leases or rents equipment or land from state or local governments.

63 Webster, 109 S. Ct. at 3053.

64 See Brief for Appellees at 31-35.

65 See, e.g., Brief Amici Curiae of the American Civil Liberties Union, the National Education Association, People for the American Way, the Newspaper Guild, the National Writers Union, and the Fresno Free College Foundation; Brief for Amici Curiae American Library Assocation and Freedom to Read Foundation Supporting Appellees; Brief for Americans for Democratic Action; Coalition of Labor Union Women; Committee of Interns and Residents; Federally Employed Women; Public Employee Department, AFL-CIO as Amici Curiae; Brief of the National Family Planning and Reproductive Health Association as Amicus Curiae in Support of Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

66 See infra pp. 163-65.

67 Webster, 109 S. Ct. at 3061 (O'Connor, J., concurring) (emphasis added).

68 Webster, 109 S. Ct. at 3063 (O'Connor, J., concurring) (quoting City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 453 (1983) (O'Connor, J., dissenting)).

69 Id. (quoting Thornburgh, 476 U.S. at 828 (O'Connor, J., dissenting)).

70 See supra pp. 158-59.

71 See Brief of 157 Distinguished Scientists at 8-16; Brief for a Group of American Medical Association at 5-8; Brief for a Group of American Law Professors at 23-29.

72 Webster, 109 S. Ct. at 3060. Later Justice O'Connor again states: “I do not think the second sentence of § 188.029, as interpreted by the Court, imposes a degree of state regulation on the medical determination of viability that in any way conflicts with prior decisions of this Court ….” Id. at 3062-63 (emphasis added) (specifically measuring the statute against the standards in Thornburgh, Colautti and Akron).

73 This distinction between facial and as applied challenges is common to O'Connor's opinions. See, e.g., Bowen v. Kendrick, 108 S. Ct. 2562, 2579 (1988); Buckley v. Valeo, 424 U.S. 1, 97 n.131 (1976); Storer v. Brown, 415 U.S. 724, 740 (1974); Seagram & Sons v. Hostetter, 384 U.S. 35, 52 (1966); Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450, 461-62 (1945); Euclid v. Ambler Realty Co., 272 U.S. 365, 395-97 (1926).

74 Webster, 109 S. Ct. at 3066-67.

75 Id. at 3064-65.

76 Id. at 3065-66.

77 Id. at 3073-75 (Blackmun, J., concurring in part, dissenting in part).

78 See, e.g., Thornburgh v. American College of Obstericians and Gynechologists, 476 U.S. 747, 786-97 (1986) (White, J., dissenting); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 453-59 (1983) (O'Connor, J., dissenting); Roe v. Wade, 410 U.S. 113, 172-78 (1973) (Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, 221-23 (1973) (White, J., dissenting).

79 Webster, 109 S. Ct. at 3057-58 (citations omitted).

80 See Brief of 281 American Historians.

81 See Brief for a Group of American Law Professors.

82 Id.

83 109 S. Ct. 2333 (1989).

84 See, e.g., Stanford v. Kentucky, 109 S. Ct. 2969 (1989); Wilkins v. Missouri, 109 S. Ct. 2969 (1989).

85 Brief of 281 American Historians at 4 (citations omitted) (citing Roe v. Wade, 410 U.S. 113, 132-36 & n.21 (1973)).

86 Applying Roe and its progeny, the dissenters also found that three of the Missouri provisions fail to pass constitutional muster. Webster, 109 S. Ct. at 3069-79.

87 Webster, 109 S. Ct. at 3067 (Blackmun, J., concurring in part, dissenting in part) (citations omitted). Justice Blackmun continued: “The simple truth is that Roe would not survive the plurality's analysis and that the plurality provides no substitute for Roe's protective umbrella. I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.” Id.

88 See, e.g., Wards Packing Cove Co. v. Atonio, 109 S. Ct. 2115 (1989); Martin v. Wilks, 109 S. Ct. 2180 (1989); Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989).

89 See, e.g., Michael H. v. Gerald D., 109 S. Ct. 2333 (1989).

90 Webster, 109 S. Ct. at 3080-81 (Stevens, J., concurring in part, dissenting in part). Although at argument the connections between birth control and abortion were fully discussed, the amici discuss this question only in one brief, the Brief of the Association of Reproductive Health Professionals, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989). It was also the brief that was cited most often by the Court.

91 Webster, 109 S. Ct. at 3082 (citations omitted).

92 See Brief Amicus Curiae for American Jewish Congress and other religious groups; Brief for Catholics for a Free Choice, Chicago Catholic Women, National Coalition of American Nuns, Women in Spirit of Colorado Task Force, et al. as Amici Curiae in Support of Appellees; Brief of Americans United for Separation of Church and State as Amicus Curiae in Support of Appellees, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

93 See, e.g., Brief of the Lutheran Church-Missouri Synod, the Christian Life Commission of the Southern Baptist Convention, and the National Association of Evangelicals as Amici Curiae in Support of Appellants; Brief Amicus Curiae of the Holy Orthodox Church, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989).

94 448 U.S. 297, 319-20 (1980).

95 McRae v. Califano, 491 F. Supp. 630 (E.D.N.Y. 1980), rev'd sub nom. Harris v. McRae, 448 U.S. 297 (1980).

96 Justice Stevens also supplies a separate reading of the viability testing provision to argue that it contravenes the standards of Roe. Webster, 109 S. Ct. at 3079-80.

97 See A Seemingly Routine Missouri Case Takes Abortion Issue to High Court, N.Y. Times, Apr. 16, 1989, at 28; High Court Has 78 “Friends” in Abortion Case, Nat'l L.J., Apr. 17, 1989, at 5; Pro-Choice Forces Get It Together, Nat'l L.J., May 1, 1989, at 27; Coyle & Lavelle, Full Court Press, Nat'l L.J., May 1, 1989, at 1; Moore, Lobbying the Court, Nat'l L.J., Apr. 15, 1989, at 908; Avalanche of Briefs in Abortion Case: Advocacy Groups Hope to Influence Supreme Court Decision, Washington Post, Apr. 6, 1989, at 21, col. 1.

98 See Flanders, Abortion: The Usable Past, The Nation, Aug. 7, 1989, at 175.

99 Will, Abortion is a State Question, Washington Post, June 18, 1989, at C7, col. 1.

100 See N.Y. Times, Apr. 27, 1989, at B12-13 (transcript of oral argument reprinted in full).