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Massachusetts Medical Society




Although states can regulate abortions after the point of fetal viability (or, more accurately, can restrict the induction of premature birth), since Roe only 13 states have enacted laws to restrict such abortions.8 Decisions after Roe In more than a dozen major cases over the succeeding 15 years, the Supreme Court applied Roe to specific attempts by some states to limit abortion rights during the first and second trimesters. [...]1989, the Court consistently struck down almost all such limitations. The Court did find it constitutional, however, for the state and federal governments to refuse to fund abortions through the Medicaid program, because in the Court's view, the failure to finance abortions did not place a governmental obstacle in the path of a woman who wanted to terminate her pregnancy.9 The Court also ruled that states could properly mandate general informed-consent requirements, confidential record-keeping and reporting related to maternal health, pathological examination of fetal tissue, and the presence of a second physician when a pregnancy was terminated after the point of viability.5 In the Court's view, none of these requirements limit a woman's ability to choose an abortion or a physician's ability to perform one. At issue in Webster was a Missouri abortion statute that had 20 provisions. Because of the way the case was argued, the Court ruled on only three of them. "14 The Court found that this preamble had not yet been used to limit access to abortion and decided that until it was applied in some concrete way, ruling on its constitutionality would be premature. Since Webster , however, the preamble has been used to defend antiabortion demonstrators against charges of trespass in front of Planned Parenthood clinics with the argument that the trespassing was justified because it was necessary to save the lives of unborn babies.13 At least two Missouri trial judges have already agreed with this unpersuasive defense, and the cases are under appeal.13 For physicians in other states, Webster means that if their legislatures pass statutes with substantially identical provisions, they will be bound by them.


From The New England Journal of Medicine, George J. Annas, The Supreme Court, Privacy, and Abortion, Volume 321, Page 1200 Copyright ©(1989) Massachusetts Medical Society. Reprinted with permission.



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