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Webster, Vagueness and the First Amendment

Published online by Cambridge University Press:  24 February 2021

James Bopp Jr.  and
Richard E. Coleson
James Bopp Jr.
Affiliation:
Indiana University, 1970; University of Florida, 1975; Partner, Brames, McCormick, Bopp & Abel, Terre Haute, Indiana; National Right To Life Committee, Inc.; Issues in Law & Medicine
Richard E. Coleson
Affiliation:
Indiana Wesleyan University, 1973; Asbury Theological Seminary, 1975; Indiana University School of Law — Indianapolis, 1987; Brames, McCormick, Bopp & Abel, Terre Haute, Indiana
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Extract

The State of Missouri forbids the expenditure of public funds “for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life.” This provision is part of a comprehensive scheme adopted by Missouri to advance its legitimate state interest in preferring childbirth over abortion by ensuring that state funds, facilities and personnel are not used to promote abortion.

This provision was invalidated by the United States Court of Appeals for the Eighth Circuit on the grounds that the language “encourage or counsel” was “void for vagueness and violative of the right to privacy.” The district court had found that in addition to these two grounds, the provision violated the first amendment.

Type
The Webster Amicus Curiae Briefs: Perspectives on the Abortion Controversy and the Role of the Supreme Court
Information
American Journal of Law & Medicine , Volume 15 , Issue 2-3 , 1989 , pp. 217 - 222
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1989

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Footnotes

†

This is a summary of the “Brief Amicus Curiae of the American Academy of Medical Ethics 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 Servs., Card No. 28.

References

1 Mo. Rev. Stat. § 188.205 (1986).

2 Maher v. Roe, 432 U.S. 464, 480 (1977).

3 Other provisions of the Missouri statutes provided that non-lifesaving abortions may not be performed at public hospitals, Mo. Rev. Stat. § 188.215 (1986), and that public employees may not “perform or assist” in the performance of non-lifesaving abortions. Id. at § 188.210.

4 Reproductive Health Servs. v. Webster, 851 F.2d 1071, 1077 (8th Cir. 1988).

5 Reproductive Health Servs. v. Webster, 662 F. Supp. 407, 426-27 (W.D. Mo. 1987).

6 410 U.S. 113 (1973).

7 See generally Bopp, & Coleson, , The Right to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3 B.Y.U.J. Pub. L. 181 (1989)Google Scholar.

8 408 U.S. 104 (1972).

9 Id. at 108.

10 455 U.S. 489, 498 (1982).

11 Prior to the abortion cases, the stricter scrutiny mentioned with regard to fundamental rights had only been applied to inhibitions of free speech or association, as evidenced by the examples given in Hoffman Estates, 455 U.S. at 499. It is evidence of the “super-protected” nature of the abortion right, noted early by John Hart Ely, that this right has been exalted to a place beside the traditionally lofty right of free expression. As Ely expressed it, the protection afforded the abortion right is “far more stringent” than that accorded any other right, “so stringent that a desire to preserve the fetus's existence is unable to overcome it — a protection more stringent… than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment.” Ely, , The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 935 (1973)CrossRefGoogle Scholar.

12 United States v. Harriss, 347 U.S. 612, 617 (1954).

13 See, e.g., Grayned, 408 U.S. at 110.

14 Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988) (giving consideration to a state attorney general's construction, but not giving it the weight of an “authoritative” construction, and certifying certain questions of construction to the state supreme court); Frisby v. Schultz, 108 S. Ct. 2495 (1988) (adopting the construction urged by a city's attorney at oral argument before the Court); Kolender v. Lawson, 461 U.S. 352, 355 (1983).

15 Harriss, 347 U.S. at 618.

16 Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973).

17 United States v. Maude, 481 F.2d 1063, 1068 (D.C. Cir. 1973).

18 Id.

19 Broadrick, 413 U.S. at 608.

20 Harriss, 347 U.S. at 612; Frisby, 108 S. Ct. at 2495.

21 Compare United States v. Vuitch, 402 U.S. 62 (1971) with Colautti v. Franklin, 439 U.S. 379, 390 (1979).

22 Brief for Appellants at 40-44.

23 Harris v. McRae, 448 U.S. 297 (1980); Maher, 432 U.S. at 464.

24 FCC v. League of Women Voters, 468 U.S. 364, 400 (1984); accord Regan v. Taxation Without Representation, 461 U.S. 540 (1983).

25 See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923) (where the Court held that a state need not fund, but may not criminalize, the teaching of German in its schools).

26 See cases cited supra note 23.

27 Reproductive Health Servs. v. Webster, 851 F.2d 1071, 1080 (8th Cir. 1988).

28 Harris, 448 U.S. at 316.

29 Id.