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Published online by Cambridge University Press: 24 February 2021
The necessary first step in the judicial review of any state statute is to determine the appropriate standard of review. Without resolution of this threshold issue, the court would be uncertain what constitutional analysis to employ, whether a low level of scrutiny, strict scrutiny or some intermediate standard.
Thus, in Webster v. Reproductive Health Services, the Court should not merely assume, without confronting, the continued viability of Roe v. Wade. Failure to reexamine Roe would depart from precedents of the Court and lead to untoward results.
In determining the standard of review to be applied to the Missouri statute at issue in Webster, the Court should be guided by the analysis of Bowers v. Hardwick, and find that there is no constitutional right to abortion. Thus, the standard of review to be employed in Webster is the rational basis test. Under this test, the Missouri statute should be upheld.
This is a summary of the “Brief Amicus Curiae of the National Right to Life Committee, Inc. in support of Appellants.” The brief may be found at Congressional Information Service Microfiche, United States Supreme Court Records and Briefs, Webster v. Reproductive Health Services., Card No. 27.
1 109 S. Ct. 3040 (1989).
2 410 U.S. 113 (1973).
3 478 U.S. 186 (1986).
4 See cases cited infra notes 5-9.
5 Roe, 410 U.S. at 129-64.
6 See,e.g., Doe v. Bolton, 410 U.S. 179, 189, 195 (1973) (cross-references to Roe regarding the appropriate analysis); Planned Parenthood v. Danforth, 428 U.S. 52, 60-61 (1976) (setting out Roe analysis in detail); Maher v. Roe, 432 U.S. 464, 470 (1977) (began by setting forth equal protection analysis); Colautti v. Franklin, 439 U.S. 379, 386-87 (1979) (reviewing the Roe standard of review before considering the statutes); Bellotti v. Baird (II), 443 U.S. 622, 633-42 (1979) (extensive discussion of Roe, Danforth and other precedent setting forth the proper analysis); Harris v. McRae, 448 U.S. 297, 311-18 (1980) (carefully reviewing the abortion privacy right analysis); id. at 319-20 (setting forth the establishment clause tests); id. at 322-23 (establishing the equal protection analysis); id. at 324 (settling on the rational basis test as the applicable standard of review); H.L. v. Matheson, 450 U.S. 398, 408-10 (1981) (review of controlling precedent and standards).
7 462 U.S. 416, 419-20 (1983) (reaffirming Roe as setting forth the controlling analysis); id. at 426-31 (extensive restatement of the trimester scheme prior to consideration of the Ohio statutes).
8 476 U.S. 747, 759, 772 (1986) (preliminary and concluding reaffirmation of Roe as containing the appropriate analysis).
9 Maher, 432 U.S. at 470.
10 Harris, 448 U.S. at 323-24 (where the Court carefully considered whether the abortion privacy right, or any other constitutional protection, entitled indigent women to public funding of abortion before concluding that the rational basis test was the controlling standard of review).
11 Bowers, 478 U.S. at 191, 196.
12 297 U.S. 288, 346-48 (1936).
13 Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 569 (1947).
14 See generally Bopp, & Coleson, , The Right to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3 B.Y.U.J. Pub. L. 181, 315-23 (1989)Google Scholar.
15 Roe, 410 U.S. at 171-72 (Rehnquist, J., dissenting) (“[T]he Court departs from the longstanding admonition that it should never ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ “ (citation omitted)).
16 This effect was observed by Justice White in his dissent in Thornburgh:
The majority's opinion evinces no deference toward the State's legitimate policy. Rather, the majority makes it clear from the outset that it simply disapproves of any attempt by Pennsylvania to legislate in this area. The history of the state legislature's decade-long effort to pass a constitutional abortion statute is recounted as if it were evidence of some sinister conspiracy…. In fact, of course, the legislature's past failure to predict the evolution of the right first recognized in Roe v. Wade is understandable and is in itself no ground for condemnation. Moreover, the legislature's willingness to pursue permissible policies through means that go to the limits allowed by existing precedents is not sign of mens rea. The majority, however, seems to find it necessary to respond by changing the rules to invalidate what before would have seemed permissible.
Thornburgh, 476 U.S. at 798.
17 This “abortion distortion” effect was explained in Bopp & Coleson, supra note 13.
18 For example, the Supreme Court has decided, to date, seven cases attempting to finetune the permissible regulation of minors seeking to abort. Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird (I), 428 U.S. 132 (1976); Bellotti v. Baird (II), 443 U.S. 622 (1979); H.L. v. Matheson, 450 U.S. 398 (1981); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983); Thornburgh, 476 U.S. at 747.
19 Akron, 462 U.S. at 456 (O'Connor, J., dissenting). Indeed, memoranda by members of the Roe majority, found in the papers of Justice Douglas and recently released by the Library of Congress, discussed the Roe opinion as “legislative” and “arbitrary”. Woodward, The Abortion Papers, Washington Post, Jan. 22, 1989, at D1, col. 1. This memoranda help put in context Justice White's charge that the Roe and Bolton majority was engaged in an exercise of “raw judicial power.” Bolton, 410 U.S. at 222 (White, J., dissenting).
20 478 U.S. 186 (1986).
21 Id. at 192-94.
22 Justice Blackmun, in Roe, relied primarily on an article by Cyril Means for his history of abortion. See, e.g.. Roe, 410 U.S. at 135; Means, , The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N.Y.L.F. 335 (1971)Google Scholar. Although the article's scholarship was questionable at the time for the non-sequitur conclusions it drew, it has since been effectively refuted with respect to the validity of its history and analysis. See, e.g., Destro, , Abortion and the Constitution: The Need for a Life-Protective Amendment, 63 Calif. L. Rev. 1250, 1267-92 (1975)CrossRefGoogle Scholar; Dellapenna, , The History of Abortion: Technology, Morality, and Law, 40 U. Pitt. L. Rev. 359, 379-89 (1979)Google Scholar; Horan & Balch, Roe v. Wade: No Justification in History, Law or Logic, Connery, The Ancients and the Medievals on Abortion: The Consensus the Court Ignored, Dellapenna, Abortion and the Law: Blackmun's Distortion of the Historical Record, Arbagi, Roe and the Hippocratic Oath, in Abortion and the Constitution (D. Horan, E. Grant & P. Cunningham eds. 1987).
23 See Bopp & Coleson, supra note 13, at 202-18.
24 Roe, 410 U.S. at 163-64.
25 Akron, 426 U.S. at 434.
26 Roe, 410 U.S. at 163.
27 Akron, 426 U.S. at 449.
28 Chief Justice Burger, in his dissent in Thornburgh, where he left the pro-Roe majority and called for reexamination of Roe, noted that the Roe Court's declaration of compelling interests had become “mere shallow rhetoric.” Thornburgh, 476 U.S. at 783-84.