With the opening of the new Supreme Court term and three new cases, each with the potential of eroding or overruling Roe v. Wade, discussions of Webster v. Reproductive Health Services, the most anticipated case of the 1989 term, are seemingly out of fashion. But Webster is significant and noteworthy as the first case of this decade which directly presented the high Court an opportunity to overrule Roe, the 1973 landmark case which afforded women the right to make intimate decisions about abortion free of governmental interference. The Court, flooded with amici curiae on both sides of the issue and an avalanche of political activism unparalleled in this decade, left Roe intact, albeit slightly modified. Because there are no longer five solid votes on the Court to uphold Roe, Webster has left its mark on American politics and has radically changed the tenor of the abortion debate for years to come.

Amicus is an ad hoc group of 57 philosophers, theologians, attorneys and physicians … who teach medical ethics to medical students and physicians. The members believe that permitting competent adults to make important, personal medical decisions in consultation with their physician is a fundamental principle of medical ethics, and that the doctor-patient relationship deserves the constitutional protection the Court has afforded it under the right of privacy.

The National Abortion Rights Action League (NARAL) and the Women's Legal Defense Fund (WLDF) co-authored an amicus curiae brief submitted to the United States Supreme Court in Webster v. Reproductive Health Services. The brief was authored on behalf of seventyseven organizations committed to women's equality. The brief argued that continued constitutional protection of a woman's fundamental right to choose abortion is guaranteed by the liberty-based right to privacy. Further, we argued that this right is essential to women's ability to achieve sexual equality. In order to participate in society as equals, women must be afforded the opportunity to make decisions concerning childbearing. Women's unique reproductive capabilities have long served as a principal justification for their unequal and disadvantageous treatment by the state. Restrictive abortion laws continue “our Nation['s] … long and unfortunate history of sex discrimination” by depriving women of the freedom to control the course of their lives.

The interest of the eight major organizations of health care professionals was not in debating the philosophical, ethical, moral or religious issues surrounding abortion. The members of the organizations differ on how to balance the woman's privacy right against the state's interests in maternal and fetal health, and in particular about whether the state has a compelling interest in fetal health before viability. Given the diversity of views, the brief neither endorsed nor opposed the Supreme Court's holding in Roe v. Wade that the state's interest in fetal health becomes compelling at viability.

The Missouri statute at issue in Webster v. Reproductive Health Services, contained three related prohibitions on speech about abortion. The statute: (1) prohibited public employees from encouraging or counseling a woman to have an abortion except where necessary to save her life; (2) banned such counseling in a public facility; and (3) prohibited the expenditure of public funds for such a purpose in any context. In essence, Missouri's statute attempted to censor the speech of physicians and counselors, even where an abortion would be medically indicated though not necessary to save the woman's life. The statutory scheme thus invades the doctor-patient relationship, jeopardizes free speech and access to medical information, and seeks to manipulate and mislead women who are considering the appropriate course of action for their unwanted pregnancies.

The mission of this brief was not only to oppose the outright over-ruling of Roe v. Wade. It was further to resist any weakening of the protective doctrine surrounding Roe's central holding that would allow states to eviscerate the right that Roe recognized. Because the brief was written on behalf of nearly 900 law professors, we consulted widely among our constituency, drawing heavily on the scholarship developed since Roe. We relied on extensive work by our colleagues supporting Roe's holding, reasoning and legitimate place in constitutional jurisprudence.

Webster v. Reproductive Health Services represented the first occasion in which a state, defending a challenge to its abortion laws, called for the Supreme Court to reconsider Roe v. Wade. This opportunity presented a two-fold challenge to those engaged in seeking the reversal of Roe through the courts. First was to persuade the Court that Roe had been erroneously decided. Second was to overcome the defense of Roe premised upon stare decisis.

Two briefs, representing separate groups of Members of Congress and Senators as amici, were filed on behalf of the appellants, each addressed to one of these challenges.

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.

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.

The Center for Judicial Studies is the only educational and public policy organization in the United States that focuses exclusively on the problem of judicial activism. It seeks to confine the power of the federal judiciary to the bounds envisioned by the Framers of the Constitution. The Center's brief was signed by fifty-six members of Congress who were concerned that Roe v. Wade “has expanded federal judicial powers into areas that are within the rightful legislative domain of Congress and the states.”

In Roe v. Wade, the Supreme Court held that “[the] right of privacy … founded in the Fourteenth Amendment's concept of personal liberty … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” The Court acknowledged that “[t]he Constitution does not explicitly mention any right of privacy.” Nevertheless, the Court held that a “right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” However, “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ … are included in this guarantee of personal privacy.”

The immediate impact of Webster v. Reproductive Health Services on the majority of abortions performed in the United States will be marginal. Even if most states enact provisions similar to those approved in Webster, no abortions would be outlawed, and only abortions performed after viability or performed in public hospitals would be directly affected. At one point, Webster had the potential for breaking new constitutional ground on the extent to which states may restrict counseling for abortion in state facilities, and by state employees. However, due to Missouri's failure to appeal the invalidation of some of these provisions, and to the limiting construction given to the provisions that were appealed, these issues were not fully joined before the Supreme Court. Their resolution is postponed to another day.

This article identifies twenty-six jurisdictions where nurses have been granted legal authority to prescribe drugs. The jurisdictions are divided into two groups: those where nurses have authority to prescribe without the supervision of a physician and can therefore function as substitutes for physicians; and those where nurses may prescribe only in collaboration with a supervising physician, and are thereby limited to functioning in a complementary role.

The issue of prescriptive authority is discussed within the context of regulating the practice of nursing, and more generally, the health care professions. The article reviews the history of Nurse Practice Acts, focusing upon the Connecticut statute and the economic implications of this statutory approach. It is argued that the law should promote the use of nurses as substitutes for physicians whenever appropriate.

The article concludes with a two-part proposal for reform: an “authorized prescriber” statute requiring health care professionals desiring to prescribe drugs to pass an examination testing their knowledge of pharmacology and drug therapy; and the elimination of the “unauthorized practice” provisions of the statutes regulating all health care professions. The proposal promotes economic efficiency by eliminating artificial constraints on the substitutability of labor in the provision of health services.

A recent New York Court of Appeals decision seriously impedes the ability of incompetent patients to control their medical care. In the case of Mary O'Connor, the court virtually eliminated an incompetent's rights to bodily integrity and privacy. The court relied on formalistic evidentiary arguments to vitiate the patient's refusal of death-prolonging treatment. This Case Comment examines both the doctrine and policy underlying the O'Connor decision, suggesting that the court erred in its holding and reasoning.

An alternative framework is presented, arguing that courts should honor competently expressed patient decisions concerning medical treatment. New York's highest court, instead, posited an incompetent patient who becomes competent for a moment to render a decision. This legal fiction is nothing more than a thinly masked technique for imposition of the judges’ values on the patient. This Case Comment argues that in the absence of clear direction from the patient, family and loved ones generally should make care decisions for the patient.

The developmentally disabled, specifically those mentally incompetent from birth, are entitled to a full panoply of constitutional rights and protections. These rights include the right to terminate life-sustaining treatment, the right of procreative integrity and the right not to be involuntarily institutionalized. However, the mentally incompetent developmentally disabled are generally unable to exercise these rights. This Note asserts first that proper procedural safeguards are necessary to guarantee the exercise of these constitutional rights by the incompetent disabled individual. Second, the Note focuses upon how best to preserve the disabled person's autonomy. The Note subsequently rejects the substituted judgment standard as a legal fiction, and endorses the best interest test which necessarily comports with the evidence, and properly accounts for the disabled person's incompetency.