From Akron to Webster
In June of 1983, the Supreme Court issued a decision that surprised people on both sides of the abortion question. Apparently returning to its earlier liberal position, it strongly rejected all parts of an Akron, Ohio, ordinance regulating abortion services and reaffirmed Roe v. Wade.97 The Akron ordinance had required a twenty-four-hour waiting period after a woman signed a consent form and hospitalization for all second-trimester abortions, thus doubling their cost and increasing the likelihood that women would have to travel to procure services. Most controversial, however, was its so-called informed consent provision requiring that physicians inform an abortion patient
that the unborn child is a human life from the moment of conception and that there has been described in detail the anatomical and physiological characteristics of the particular unborn child at the gestational point of development at which time the abortion is to be performed, including, but not limited to, appearance, mobility, tactile sensitivity, including pain, perception or response, brain and heart function, the presence of internal organs and the presence of external members.98
In his majority (6-3) opinion for the Court, Justice Powell invalidated Akron’s hospitalization, waiting period, and informed consent requirements, declaring that "Akron has imposed a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and safe abortion procedure." The "information" the ordinance required physicians to give pregnant women seeking abortion was "designed not to inform the woman’s consent but to persuade her to withhold it altogether," thus creating an undue interference in a woman’s constitutionally protected choice. At the same time, the Court found the informed consent provision objectionable because it "[intruded] upon the discretion of the pregnant woman’s physician" and hence replaced the authority of the medical profession with that of the state.99 The Akron majority, then, closely followed Roe in its ambiguous emphasis on both women’s privacy and medical authority.
More significant from hindsight than it appeared at the time, Justice Sandra Day O’Connor’s dissenting opinion in Akron, joined by Justices White and Rehnquist, introduced the "fetal rights" edge into the minority’s position that would by Webster become predominant. Calling into question Roe’s entire trimester formula, O’Connor argued that "the state’s interest in protecting potential human life exists throughout the pregnancy."100 Where, then, might any lines be drawn to demarcate a space where the state could not regulate women’s abortion right? This doctrinal concession to both "compelling state interests" and the "right-to-life" movement paved the way for the Reagan administration, in its brief in Thornburgh v. American College of Obstetricians and Gynecologists (1986), for the first time to ask that the Court overturn Roe v. Wade and throw abortion law back to the states.
Thornburgh involved a Pennsylvania statute that contained a similar informed consent provision to that in Akron; a requirement that providers use reporting forms that would make it easy to identify individual women and doctors participating in abortions; and a requirement that physicians performing abortions treat the potentially "viable" fetus as though intending its birth (that is, use methods safer for the fetus and more dangerous for the woman).101 The Court’s majority once again rejected this kind of restrictive legislation as "an outright attempt to wedge the [state’s] message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician." Moreover, in an apparent reaction to the strongest attack on its abortion decisions the Court had yet received, Justice Blackmun’s majority opinion went further than the Court has gone before or since toward defining abortion in feminist and libertarian terms:
Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. That promise extends to women as well as to men. Few decisions are more personal and intimate, properly private, or more basic to individual dignity and autonomy, than a woman’s decision. . . whether to end her pregnancy. A woman’s right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.102
If these stirring words represent the most "feminist" position the Court has taken, they also represent the narrowest majority in the history of its abortion cases. Perhaps that is why Blackmun felt compelled to argue in such forceful terms for a view of privacy in abortion decisions as "fundamental" to women’s full equality as citizens. Yet the fragility of this liberal position in the Supreme Court became all too evident when, in the very same term as Thornburgh, Justice Powell joined the Court’s conservative wing in upholding the state’s power under the constitution to enter the private bedroom of consenting adult homosexuals and convict them of the "sexual crime" of sodomy. In Bowers v. Hardwick the conservative realignment upheld Georgia’s criminal sodomy statute, with its penalty of up to twenty years’ imprisonment. It argued, first, that "homosexual activity" (and other "sexual crimes") has no connection to the rights of "family, marriage, or procreation" protected in its line of privacy cases; and second, that prohibitions against "sodomy" (limited in the majority opinion to homosexual acts) "have ancient roots" in the common law and the laws of states that give them presumptive weight.103 This clear message that there is no constitutional right to privacy where homosexuals (gay or lesbian) are concerned should have been a warning to women seeking abortions—another "deviant" group: "privacy" would not long remain a safe shelter for women’s reproductive rights.
For the Thornburgh minority (which would become the Webster plurality), there is no fundamental right to abortion; at most there is a "liberty interest"—like the interest in traveling to a ski resort or operating a candy store. In a dissenting opinion joined by Justice Rehnquist, Justice White (who also wrote the majority opinion in Hardwick) mapped out the arguments that would finally carry the Court in 1989. First, he dispensed with the question of adherence to precedent by appealing to traditional tactics of judicial restraint and strict constructionism in the face of "a hotly contested moral and political issue." Such an issue supersedes the rule of stare decisis, he argued, and must be decided either by the legislative "will of the people" or through a mode of judicial interpretation that limits "fundamental rights" to matters explicitly recognized in the Constitution’s text or "deeply rooted in this nation’s history and tradition." Since no direct "references to abortion, nor, indeed, to pregnancy or reproduction generally," can be found in the Constitution, according to the "originalist" position the people—that is, the framers—could not possibly have intended such a right to exist. The Court is therefore justified, in fact obligated, to overturn Roe v. Wade.104
Of course, as Zillah Eisenstein has shown, the originalist position takes for granted the Constitution’s embedded assumption of "the male body as the individual with protected rights." Why, indeed, would the Constitution make reference to pregnancy or reproduction when the citizens it was designed to protect were "(non-pregnant) men," and white male slaveowners at that?105 The pretense of neutrality in the language of constitutional rights has long been used to shield the "engendered" character of the law, including the law regarding privacy. Thus Justice White distinguishes Roe from other privacy cases—those involving contraception and childrearing decisions, construed as "parental rights" or "family autonomy"—on the ground that "fetal life" is at stake: as the Court put it in Roe, "the pregnant woman cannot be isolated in her privacy."106
Finally, Justice White’s dissent in Thornburgh repeated Justice O’Connor’s challenge to the trimester formula, arguing that the state’s interest in "protecting fetal life" is just as compelling at the beginning of pregnancy as at the end; that the viability line "is entirely arbitrary." But now there is a subtle shift in language. "The State’s interest," Justice White maintains, "is in the fetus as an entity in itself’107—an entity, it would appear, entirely abstracted from the pregnant woman, her health, or even the pronatalist policy favoring childbirth upon which the Court formerly rested the state’s post-viability regulatory powers. Yet the shift from "potential human life" to "fetal life/’ and from "favoring childbirth" to the "fetus in itself," is small compared to the dramatically altered language Chief Justice Rehn – quist introduces only three years later in Webster v. Reproductive Health Services. There, the fetus drops out of sight and, except during the technical discussion of viability, becomes over and over "the unborn child" (a term taken from the Missouri statute’s preamble and right-to-life rhetoric but never before used by the Court in its abortion cases). This shift in language signals a major conceptual and doctrinal shift, an "overt move to elevate the status of the fetus."108 Never once does the plurality decision in Webster refer to abortion as a "privacy right" or as a woman’s constitutional right at all. Nor does it refer to the libertarian principles of Akron and Thornburgh but relies instead on the dissents in those cases, along with the majority’s meaner precedents in Maher and McRae. As Justice Blackmun writes in his dissent, Webster "repudiates every principle for which Roe stands" and virtually invites states to enact stricter and stricter restraints on women’s abortion access.109
The preamble to the Missouri statute—upheld in Webster—could not be plainer, declaring that "the life of each human being begins at conception" and that "unborn children have protected interests in life, health and well-being." Moreover, it requires, in Rehnquist’s words, that all state "laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court’s precedents." In other words, in case of a conflict between a "woman’s right to choose" (or perhaps her life?) and the interests of the fetus, the state is justified in favoring the fetus. The plurality decision responds to this antiabortion message at best ambiguously and with scarcely veiled approval. While minimizing it as just "a value judgment favoring childbirth over abortion," with no regulatory authority over abortion or its practitioners, it nonetheless suggests that the preamble’s words will provide a powerful directive to courts and policy makers. Indeed, as the plurality well knew, the Missouri Supreme Court had already used the statute’s preamble to support its decision denying the parents of a young woman kept alive by a feeding tube the means to secure her right to die: "as long as medical treatment was not ‘oppressively burdensome,’ a patient had no legal interest that could outweigh the ‘policy strongly favoring life,’ regardless of its quality, that had been adopted by the State Legislature."110
Fetal personhood, then—"life" as an "entity in itself," without any concern for its context or its quality—has become a de facto rule in the jurisprudence of the nation’s highest court, without the Court’s even having to rule on it. Extending this rule by innuendo to the viability principle, Rehnquist’s opinion uses the statute’s viability-testing provisions as an occasion to all but jettison Roe v. Wade.111 Upholding the requirement that physicians conduct "viability tests" on any fetus believed to be of twenty weeks’ gestation or more—despite the likely increase in costs and burdens such tests may impose—Rehnquist seizes the moment to intrude the doctrine of Akron’s and Thornburgh’s minorities into Webster’s plurality. Without formally overruling Roe, he asserts, "We have not refrained from reconsideration of a prior construction of the Constitution that has proved ‘unsound in principle and unworkable in practice/ . . . We think the Roe trimester framework falls into that category." "Trimesters and viability," after all, "are not found in the text of the Constitution" (but neither, one might add, are "procreation," "privacy," or "national security"). Besides, jurisdiction over abortion has plunged the Court into "a web of legal rules" that would better, Rehnquist implies, be left to the states. Above all, "we do not see why the State’s interest in protecting potential human life should come into existence only at the point of viability" rather than "throughout pregnancy."112 With this assertion—deployed, as Blackmun’s dissent rightly protests, without "one word of rationale" and echoing the dissents in 1983 and 1986—the house of Roe is left a gutted shell. For, if the state’s "compelling interest" can come into play at any moment in a pregnancy, what conditions or needs of a pregnant woman might offset it? What sorts of regulations would ever be too "burdensome" to withstand the claims of "fetal life" against a woman’s determination of her own reproductive destiny?
While falling short of overruling Roe altogether, the plurality in Webster succeeds in trivializing its reach; reducing women’s "fundamental constitutional right" to a "liberty interest" no longer guarded by the court’s "strict scrutiny" standard;113 and thus opening up abortion to indeterminate legal restrictions.114 Instead of resolving the public contest over abortion, the Webster court incites it.
Just how far such restrictions may go is suggested in the Missouri statute’s ban on the use of any public facilities or employees to perform abortions, which the court in Webster upheld. As Justice Blackmun writes, "by defining as ‘public’ every health-care institution with some connection to the State, no matter how attenuated, Missouri has brought to bear the full force of its economic power and control over essential facilities to discourage its citizens from exercising their constitutional rights"; it thus has narrowed the choices of all women, but especially "those too sick or too poor to travel."115 Indeed, the decision’s immediate impact on abortion services in Missouri was to provoke some private hospitals to turn away women seeking abortions on the ground that "we get Medicaid; we are publicly funded."116 The plurality, however, draws on the reasoning in Maher and McRae to argue that withholding public services and facilities is not the same as creating a "governmental obstacle"—at least, not in a capitalist society. ("A different analysis might apply," Rehnquist admits in a telling footnote, "if a particular State had socialized medicine and all of its hospitals and physicians were publicly funded."117) "Nothing in the
Constitution requires States to enter or remain in the business of performing abortions"; more broadly, the neoconservative court recognizes "no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."118
Through Webster, then (and through a "Reaganized" Supreme Court), abortion has become the occasion for asserting and codifying two primary tenets of the neoconservative state and law: (1) no rights not specifically enumerated in the Constitution are "fundamental," or immune from the state’s intrusion; and (2) whatever personal rights may exist or receive judicial endorsement, the state has no affirmative obligation to assure their meaningful exercise. Whether as individuals or as a class, women are at the mercy of the private market; the Supreme Court strikes yet another blow against the "socialist" tendencies of social welfare provision.
Of course, the Webster decision was not made in a vacuum but preceded by a barrage of rightward leaning decisions in the domain of civil rights. In DeShaney v. Winnebago County Department of Social Services, decided just five months before Webster, the majority seems determined to prove that its concern for fetal life should not be confused with concern for children’s welfare. Here the court was faced with an appalling set of facts: a young child brutally beaten and severely brain damaged by his custodial father; arguments by the child’s mother and her lawyers that the state had deprived the child of "his liberty interest in bodily integrity" by failing to protect him, even after social workers had repeatedly recorded evidence of injuries and abuse. Yet Chief Justice Rehnquist, arguing for a 6-3 majority, firmly denied that the due process clause requires the state "to provide its citizens with particular protective services," including "abortions or other medical services," "adequate housing," or even police protection from "invasion by private actors."119 Ignoring the fact that the state, and no private actor, placed Joshua DeShaney in the custody of his father in the first place, Rehnquist posits a view of the state’s obligations in relation to individuals so minimal as to make Thomas Hobbes seem a socialist. The state is responsible under the Constitution for remedying only those wrongs it directly created; it has no "affirmative obligation" to secure people against denials of life, liberty, or property by anyone else, much less to provide them with the conditions for a decent or fulfilling life.
This minimalist, laissez-faire stance has an even broader impact in the series of retrograde affirmative action decisions rendered by the Supreme Court in its spring 1989 term. These decisions effectively reversed years of precedent that had utilized statistical data to show patterns of job discrimination and had placed the burden of proof on employers to show that negative personnel actions or job classification schemes were non – discriminatory.120 The Court’s dismissal of statistical evidence of patterns of discrimination—as opposed to individual, interpersonal incidents—is exactly analogous to its denial of social realities, and the social impact of restrictive laws, in the DeShaney and Webster cases. The daily reality of racism in society and the workplace is of no consequence whatever in its decisions, any more than "the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life/’121
More palpably than the organized right-to-life movement, the Supreme Court has demonstrated that opposition to abortion is integrally tied to economic and social conservatism, and to institutional sexism and racism. But conservatism, like liberalism, is replete with contradictions. On the one hand, the line of abortion decisions from Maher to Webster reflects a view of the state as minimalist guarantor of law and order and market stability—indeed, as merely the highest in a hierarchy of private corporate entities. The state, for neoconservatives, has no affirmative social obligations; it is bound by no concept of social need or even of the public good. We the citizens (especially women, but perhaps even fetuses) have no rights that are "fundamental" (therefore requiring positive state intervention to guarantee), only "interests" that are particular and contingent.
On the other hand, the New Right version of conservatism, also represented on the Court, takes a more interventionist view of the state as aggressive enforcer of "traditional" values. Here the state becomes Big Daddy, marching in to pry "sexual deviants" out of their beds or to save helpless fetuses from selfish moms. Its "compelling interests" (in traditional morality and patriarchal authority) become the pretext for invading the private spheres that neoconservatism claims to want left unregulated. Thus, the sexual surveillance of Hardwick and the fetal protectionism of Webster hang in tense interplay with the formal deference the Court still pays to principles of "freedom of choice" and the minimalist state.122 And this tension between New Right protectionism (for fetuses, fathers, and free markets) and neoconservative privatism (for corporations and states) reveals itself to be the mirror image of the liberal tension between social welfare interventions (on behalf of poor women and children) and sexual and reproductive privacy (for gays, lesbians, and pregnant women)—a tension from which feminists seem unable to escape.
The beginning of this chapter—written several years before the Reagan revolution in the federal courts—argued that the role of the courts is "to accommodate an increasingly conservative social content" to formal liberal principles of constitutionality and "choice." Hardwick, Ward’s Cove, and now Webster suggest how superficial and tenuous such an accommodation can be. It remains true that the court functions as a reflector rather than an instigator of broader political trends. As political and social conservatism in the United States deepened in the 1980s, however, the
Court condensed that conservatism, refracted it, and sent it back into the society in the congealed form of "the law." This has meant specifically that all claims to rights based on group or social identities, whether through sexual orientation, race-ethnicity, or gender (as opposed to isolated, neutered, colorless individuals claiming the right to bum the flag123), are nullified. Not only has the Supreme Court devalued and whittled away the idea of "a woman’s right to choose"; even more seriously for feminist strategies of social change, the Court as presently constituted employs a discourse that denies the very existence of women as a social category with distinct needs the law ought to recognize. How can we secure "control over our bodies" through an institution that refuses to acknowledge we even have bodies?124
As Justice Scalia predicted, the Webster decision unleashed its own kind of political backlash. Immediately, the "carts full of mail from the public" and "streets full of demonstrators" Scalia warned of came to life. The National Organization for Women, NARAL, Planned Parenthood, and their local and state allies and affiliates launched a defiant and apparently effective campaign aimed at state legislatures and upcoming elections. Completing the scenario, "chaos" in the states resounded: Florida legislators and courts roundly rejected the right-to-life appeals of their governor to tighten abortion restrictions in that state, and other states followed suit. Yet, another group of state legislatures—most aggressively in Pennsylvania—geared up to heed Webster’s green light and to pass omnibus antiabortion bills. In marked contrast to preceding years, the now-worried liberal press allowed photographs of militant throngs of pro-choice women and placards ("Who Decides, You or Them?," "A Woman is More Than a Fetus," "Keep Abortion Legal") to upstage antiabortion demonstrators. Black and white politicians who allied themselves openly with abortion rights won historic victories in Virginia and New Jersey gubernatorial and New York City mayoral races. And, facing revolts from not only the voters but the stalwart women fundraisers in their party (who favor legal abortion), Republican leaders began to back off from an antiabortion position that many began to see as deadly. Unwittingly, as the Republican National Committee’s chief of staff put it, the Supreme Court in Webster had dropped "a hydrogen bomb into a conventional war."125
But if the Court’s neoconservatism has backfired from the antiabortionists’ point of view, this should give reproductive rights advocates little comfort. On a deeper level, the Court’s erosion of any reliable Constitutional basis for grounding civil or group rights has effectively undermined the law as an avenue for social change. Feminists, white or of color, men of color, and gays and lesbians do not control the courts. Except in rare instances, our language does not become the courts’ language nor our visions the courts’ visions. This is not an appeal to abandon the courts as an arena for political struggle in a progressive cause. But it does say that feminist ideas and movements must find a stronger voice in popular culture and consciousness before they can have a lasting impact on state power.