Webster v. Reproductive Health Services

RESPONDENT: Reproductive Health Services
LOCATION: Reproductive Health Services

DOCKET NO.: 88-605
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 492 US 490 (1989)
ARGUED: Apr 26, 1989
DECIDED: Jul 03, 1989

Charles Fried - Argued the cause for the United States as amicus curiae urging reversal
Frank Susman - Argued the cause for the appellees
William L. Webster - Pro se, argued the cause for the appellants

Facts of the case

In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. The statute's preamble indicated that "[t]he life of each human being begins at conception," and the law codified the following restrictions: public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability tests upon women in their twentieth (or more) week of pregnancy. Lower courts struck down the restrictions.


Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment?

Media for Webster v. Reproductive Health Services

Audio Transcription for Oral Argument - April 26, 1989 in Webster v. Reproductive Health Services

William H. Rehnquist:

We will hear argument now in No. 88-605, William L. Webster versus Reproductive Health Services.

General Webster.

William L. Webster:

Mr. Chief Justice and may it please the court, this case represents a direct appeal that involves a 1986 Missouri statute defining the rights of the unborn and regulating abortion in Missouri.

Missouri's appeal involves three basic areas for this court's review: The first, the constitutional boundaries on the limitations of public funding; the second, the effect of and the facial constitutionality of legislation declaring that life begins at conception; and, third, the ability of a state to require a physician to perform tests and to make and record findings when determining viability.

Finally, we have asked this court to reconsider the standard of review to be applied to state abortion regulation.

Since 1973 this court has reaffirmed Roe versus Wade's mandate, state and lower Federal courts have repeatedly interpreted that mandate, frequently strictly against the states.

One result is that the states have effectively been forbidden, not only to prohibit abortion but usually to regulate abortion in any significant way.

We would begin with the public funding area where the Eighth Circuit upheld that portion of Missouri's law which declared unlawful the expenditure of public funds for the purpose of performing or assisting in an abortion but struck down three subsequent sections.

The court declared first of all Section 188.205 relating to the expenditure of public funds for abortion advocacy, facially unconstitutional.

We would contend to the court as we have at every level that this particular section, which we have appealed, does not go to the speech but rather is directed at the entities responsible for expending public funds.

Sandra Day O'Connor:

Mr. Webster, is that the argument you made below?

William L. Webster:

There were three sections.

Sandra Day O'Connor:

Yes I know.

Is that the argument you made with regard to this section?

William L. Webster:


We have suggested throughout that this language is directed towards those individuals responsible for the expenditure of public funds, that it is not directed to any physician or any health care provider.

We would note that much of Appellees brief treats it as if the subsequent two sections are still before the Court dealing with public employees and other health care providers and speech in public facilities.

But that's not what we have brought here.

We contend the government is certainly not obligated in and of itself to become an advocate for abortion.

This court was very explicit in Meyer when it concluded that a state is not required to show a compelling interest for its policy choice to favor child birth, normal child birth over advocacy of abortion.

Byron R. White:

So some part of the decision below you don't appeal, especially in the speech area?

William L. Webster:

There are two provisions in the speech area that are not before this court.

One dealt with the speech of public employees and the other the speech in public facilities.

The only issue that remains--

Byron R. White:

So you don't challenge the judgment below in that respect?

William L. Webster:

--We have not challenged those.

We have not brought those before this court.

We also deal with the question of public funding in hospitals and the use of public employees.

We contend here that the Eighth Circuit struck down Missouri's prohibition of the use of public facilities and public employees improperly.

We suggest that they ignored the language of this court in Poelker and Maher.