Effects of Webster v. Reproductive Health Services on Washington laws.

ABORTIONS--CONSTITUTIONAL LAW--CRIMES--PHYSICIANS--PREGNANCY

1. RCW 9.02.010 is still unenforceable insofar as it purports, in conjunction with RCW 9.02.060 et seq., to prohibit abortions occurring more than four lunar months after conception but prior to viability.

2. Webster v. Reproductive Health Servs., 57 U.S.L.W. 5023 (1989) does not overruleRoe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973); the effect ofWebster is to uphold provisions of Missouri statutes which have no counterparts in Washington statute; thus Roe still renders most of Washington's abortion statute (RCW 9.02.010 through .090) unenforceable.

3. The conclusions reached in AGO 1973 No. 7, that Roe rendered several of Washington's abortion provisions unenforceable, remain valid after Webster v. Reproductive Health Servs., 57 U.S.L.W. 5023 (1989); we decline to speculate about the future direction of case law on abortion.

4. There is no current law in Washington prohibiting the use of public funds for abortions;Webster v. Reproductive Health Servs., 57 U.S.L.W. 5023 (1989) does not change Washington law in this regard.

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August 25, 1989

HonorableMike Padden
State Representative, 4th District
East 13021-9th Avenue
Spokane, WA 99216

Honorable Ellen Craswell
State Senator, 23rd District
8066 Chico Way N.W.
Bremerton, WA 98312

Cite as:AGO 1989 No. 16

Dear Representative Padden and Senator Craswell:

By letter previously acknowledged, you have requested our opinion on two questions that we paraphrase as follows:

1. Is RCW 9.02.010 enforceable insofar as it, in conjunction with RCW 9.02.060 et seq., prohibits abortions occurring more than four lunar months after conception but prior to viability,[1] except when necessary to preserve the life of the pregnant woman or unborn child?

2. If the answer to question 1 is yes, that RCW 9.02.010 is enforceable insofar as it prohibits abortions occurring more than four lunar months after conception but prior to viability, may public funds be spent in support of such abortions?

We answer your first question in the negative for the reasons set forth in our analysis. Our negative response to your first question makes a response to your second question unnecessary. We should note with respect to your second question, however, that Washington does not currently prohibit the expenditure of public funds for legal abortions. In 1984, Washington voters rejected Initiative 471, a measure that would have prohibited all public funding of abortions, except to prevent the death of the pregnant woman or to protect the life of the unborn child.

ANALYSIS

As you explain in your letter seeking our legal opinion, your questions arise from a recent decision of the United States Supreme Court concerning abortion,Webster v. Reproductive Health Servs., 57 U.S.L.W. 5023 (U.S. July 3, 1989).[2]Indeed, the essence of your first question is whether Webster renders RCW 9.02.010 valid insofar as this statute purports to prohibit abortions after the first four lunar months of pregnancy but prior to viability (except where necessary to preserve the life of the pregnant woman or unborn child). This prohibition was widely recognized as not being legally enforceable prior toWebster.[3]

To determine whetherWebster has revived the enforceability of RCW 9.02.010 et seq., the Washington statutes generally prohibiting abortion after the first four lunar months of pregnancy, we first undertake a brief overview of the state of the law in Washington before Webster. We begin this overview by considering relevant state statutory provisions prohibiting abortion. We then summarize the effect of Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), on these statutes. Finally, we consider theWebster decision and particularly, whether it has revived the enforceability of RCW 9.02.010, insofar as that statute prohibits abortion prior to fetal viability unless necessary to preserve the life of the pregnant woman or unborn child.

I. Washington's Abortion Statutes

Before 1970, abortion was a criminal act in Washington, unless necessary to preserve the life of a woman or her unborn child. RCW 9.02.010. In 1970, with the voters' approval of Referendum 20 (chapter 3, Laws of 1970, 1st Ex. Sess.), Washington enacted statutes legalizing abortion during the first four lunar months of pregnancy and prior to quickening.[4]These statutes, RCW 9.02.060 and RCW 9.02.070, have remained in Washington's criminal code since then.[5]

RCW 9.02.060 provides:

Neither the termination by a physician licensed under chapters 18.71 or 18.57 RCW of the pregnancy of a woman not quick with child nor the prescribing, supplying or administering of any medicine, drug or substance to or the use of any instrument or other means on, such woman by a physician so licensed, nor the taking of any medicine, drug or substance or the use or submittal to the use of any instrument or other means by such a woman when following the directions of a physician so licensed, with the intent to terminate such pregnancy, shall be deemed unlawful acts within the meaning of this act.

RCW 9.02.070 provides:

A pregnancy of a woman not quick with child and not more than four lunar months after conception may be lawfully terminated under RCW 9.02.060 through 9.02.090 only: (a) with her prior consent and, if married and residing with her husband or unmarried and under the age of eighteen years, with the prior consent of her husband or legal guardian, respectively, (b) if the woman has resided in this state for at least ninety days prior to the date of termination, and (c) in a hospital accredited by the Joint Commission on Accreditation of Hospitals or at a medical facility approved for that purpose by the state board of health, which facility meets standards prescribed by regulations to be issued by the state board of health for the safe and adequate care and treatment of patients: Provided, That if a physician determines that termination is immediately necessary to meet the medical emergency the pregnancy may be terminated elsewhere. Any physician who violates this section or any regulation of the state board of health issued under authority of this section shall be guilty of a gross misdemeanor.

After the first four lunar months of pregnancy Washington's statutes prohibit abortion unless it is necessary to preserve the life of the pregnant woman or the unborn child. This prohibition is derived from RCW 9.02.010, the statute about which you have inquired. It provides:

Every person who, with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve her life or that of the child whereof she is pregnant, shall--

(1) Prescribe, supply, or administer to a woman, whether pregnant or not, or advise or cause her to take any medicine, drug or substance; or,

(2) Use, or cause to be used, any instrument or other means;

Shall be guilty of abortion, and punished by imprisonment in the state penitentiary for not more than five years, or in the county jail for not more than one year.[6]

The 1970 referendum did not repeal this statute, but merely added new sections, including RCW 9.02.060 and .070, quoted above.

In summary then, prior toRoe v. Wade, Washington's criminal statutes permitted abortion before quickening during the first four lunar months from conception and prohibited it thereafter, unless necessary to preserve the life of the pregnant woman or unborn child.

II. Roe v. Wade and Its Impact on RCW 9.02.010

In 1973, the United States Supreme Court decided Roe v. Wade, concerning the constitutionally permissible scope of state regulation of abortion. InRoe, the high court concluded that the right of privacy based upon the Fourteenth Amendment's protection of personal liberty[7] "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe, 410 U.S. at 153. At the same time, theRoe Court concluded that a woman's right to decide whether to terminate a pregnancy is not absolute, but rather is to be "considered against important state interests in regulation." Roe, 410 U.S. at 154. According to the Court inRoe, as the term of a pregnancy progresses, "another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly." Roe, 410 U.S. at 159. In balancing a woman's privacy right against state interests in protecting maternal health and potential human life, the Roe Court ruled:

With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact . . . that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Roe, 410 U.S. at 163-64.

Therefore, insofar as it is relevant to your inquiry, Roe determined that a state prohibition against pre-viability abortions, is constitutionally impermissible.[8]

On the basis ofRoe, AGO 1973 No. 7 concluded that to the extent RCW 9.02.010 purported to prohibit abortions prior to viability it was in clear conflict with the Supreme Court's ruling in Roe and thereby was rendered unenforceable.

No United States Supreme Court decision after Roe and before Webster causes us to question or alter that conclusion. Nor do you suggest in your letter that any United States Supreme Court decision beforeWebster calls this conclusion into question.

With this background in mind--i.e., Washington's statutory provisions prohibiting abortion, as limited by Roe--we consider the effect of Webster.

III. Webster v. Reproductive Health Services

InWebster, a majority of the United States Supreme Court upheld as constitutional a Missouri statute relating to testing to determine fetal viability.[9]In sustaining this statute, no single rationale garnered the support of a majority of the Court. Nor did a majority of the Court, in upholding the Missouri statute, overruleRoe. The lack of consensus in the Court's rationale and the fact that the majority did not abandonRoe are critical to our conclusion thatWebster does not revive the enforceability of RCW 9.02.010 insofar as it prohibits pre-viability abortions. For this reason, we explore the several opinions in Webster in some detail.[10]

The viability testing provision challenged in Webster, Mo. Rev. Stat. § 188.029, stated:

Before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viability in the medical record of the mother.[11]

Plurality Opinion

The plurality opinion in Webster was written by Chief Justice Rehnquist and joined in by Justices White and Kennedy. The plurality of the Court first recognized that Missouri's viability testing statute was "concerned with promoting the State's interest in potential human life rather than in maternal health." Webster, 57 U.S.L.W. at 5029. The plurality also construed the statute as requiring a determination as to viability and "specifying consideration, if feasible, of gestational age, fetal weight, and lung capacity." Webster, 57 U.S.L.W. at 5029.[12]As so construed, the plurality indicated two of the Court's prior abortion decisions[13]cast doubt on the constitutionality of this provision because the statute regulated the method of determining fetal viability and because it increased the cost of some second trimester abortions. The plurality ultimately rejected these constitutional doubts, however, and upheld the statute. In doing so, the plurality stated:

We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases likeColautti andAkron making constitutional law in this area a virtual Procrustean bed.

Webster, 57 U.S.L.W. at 5030.

In its criticism of the "rigid Roe framework", the plurality stated, "we do not see why the State's interest in protecting potential human life should come into existence only at the point of viability" and rejected the view that there should be a "rigid line allowing state regulation after viability but prohibiting it before viability." Webster, 57 U.S.L.W. at 5030. The plurality concluded: "[W]e are satisfied that the requirement of these tests permissibly furthers the State's interest in protecting potential human life, and we therefore believe § 188.029 to be constitutional." Webster, 57 U.S.L.W. at 5031.

The plurality nevertheless rejected urging by the State of Missouri and the United States to overrule Roe. The plurality explained:

The facts of the present case . . . differ from those at issue inRoe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. InRoe, on the other hand, the Texas statute criminalized the performance ofall abortions, except when the mother's life was at stake. This case therefore affords us no occasion to revisit the holding ofRoe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.

Webster, 57 U.S.L.W. at 5031 (citations omitted).

Opinion of Justice Scalia

Justice Scalia also voted to uphold the Missouri statute. Unlike the plurality, he expressed the view thatRoe v. Wade should be overruled and that the Court should overrule it in Webster. Webster, 57 U.S.L.W. at 5034.

Opinion of Justice O'Connor

The fifth vote, creating a majority to sustain the Missouri viability testing statute, was cast by Justice O'Connor. However, in voting to sustain the validity of the Missouri viability testing provision, Justice O'Connor rejected much of the rationale of the plurality,[14] stating:

Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court's past decisions concerning state regulation of abortion. Therefore, there is no necessity to accept the State's invitation to reexamine the constitutional validity of Roe v. Wade.

Webster, 57 U.S.L.W. at 5032 (citation omitted). Justice O'Connor cited a prior decision of the United States Supreme Court,Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 90 L. Ed. 2d 779, 106 S. Ct. 2169 (1986), for the proposition that "it is not constitutionally impermissible for the State to enact regulations designed to protect the State's interest in potential life when viability is possible." Webster, 57 U.S.L.W. at 5033. In that the Missouri statute required a determination regarding fetal viability at a point when fetal viability was possible,i.e., at 20 weeks estimated gestation, in light of the potential 4-week margin of error in determining gestational age, found by the district court, Justice O'Connor decided that the statute was valid. Although Justice O'Connor stated that she continued to consider Roe's trimester framework "problematic", Webster, 57 U.S.L.W. at 5033, she refused in Webster to reconsider Roe,id. at 5032.

Dissenting Opinions

Four Justices dissented in Webster, Justices Blackmun, Brennan, Marshall, and Stevens. These Justices rejected the construction of the Missouri viability testing statute adopted by the plurality and Justice O'Connor. The dissenting members of the Court interpreted the Missouri statute as "mandating tests to determine fetal weight and lung maturity for every fetus thought to be more than 20 weeks gestational age", even though such tests would have no medical justification and would impose significant additional health risks to the woman and the fetus. Webster, 57 U.S.L.W. at 5037. The dissent characterized the Missouri statute in the following manner:

As written, § 188.029 is an arbitrary imposition of discomfort, risk, and expense, furthering no discernible interest except to make the procurement of an abortion as arduous and difficult as possible.

Webster, 57 U.S.L.W. at 5037.

Like Justice O'Connor, however, the four dissenting Justices agreed that, as construed by the plurality, the Missouri statute was constitutional and consistent withRoe. The dissent explained:

No one contests that under the Roe framework the State, in order to promote its interest in potential human life, may regulate and even proscribe non-therapeutic abortions once the fetus becomes viable. If, as the plurality appears to hold, the testing provision simply requires a physician to use appropriate and medically sound tests to determine whether the fetus is actually viable when the estimated gestational age is greater than 20 weeks (and therefore within what the District Court, found to be the margin of error for viability), then I see little or no conflict with Roe. Nothing inRoe, or any of its progeny, holds that a State may not effectuate its compelling interest in the potential life of a viable fetus by seeking to ensure that no viable fetus is mistakenly aborted because of the inherent lack of precision in estimates of gestational age. A requirement that a physician make a finding of viability, one way or the other, for every fetus that falls within the range of possible viability does no more than preserve the State's recognized authority.

Webster, 57 U.S.L.W. at 5037 (citations and footnote omitted).

IV. The Effect of Webster on RCW 9.02.010

We believe that two important points become clear from this review of the several opinions in Webster.

First, the Court did not overrule the analytical framework or holding ofRoe inWebster. To be sure, four of the Justices (Chief Justice Rehnquist and Justices White, Kennedy, and Scalia) are evidently ready to do so. But four Justices do not comprise a majority of the Court. For now,Roe and its progeny remain the law. And under the principles enunciated inRoe, RCW 9.02.010 remains unenforceable, insofar as it would prohibit pre-viability abortions.

Second,Webster was concerned with and sustained an abortion statute requiring a determination as to fetal viability, at a point when viability is possible. In this respect, the Missouri statute shares little in common with RCW 9.02.010, the statute about which you inquire. The Missouri law sustained in Webster did not prohibit pre-viability abortions. In fact, such abortions were legally permissible in Missouri. Webster, 57 U.S.L.W. at 5031. RCW 9.02.010, on the other hand, does prohibit pre-viability abortions. Thus, we are not faced with a situation where the Court upheld a statute so similar to Washington's statute that we responsibly could conclude the Washington statute likewise is valid. Since the Court inWebster did not overrule Roe, we cannot conclude that because Webster sustained an abortion statute requiring a viability determination when viability is possible, a statute prohibiting abortion before viability (unless necessary to preserve the life of the woman or the unborn child), likewise would be sustained. In this respect, we cannot concur with the suggestion in your letter that Webster is to be read as a broad validation of state regulation of abortion, in the interest of protecting potential human life, during the second trimester of pregnancy.[15]

We recognize that many people, including legal scholars and commentators, are speculating on the ultimate fate of the analytical framework established inRoe v. Wade and on the course the United States Supreme Court may take in future decisions concerning the authority of the states to regulate abortion. We, too, recognize thatWebster may well foreshadow a high court more open to state regulation of abortion. It would be highly inappropriate, however, for us to base our legal opinion on speculation about what the future may bring to this area of the law, when faced, as we are, with the dispositive precedent of Roe. Quite simply, if the analytical principles of Roe are to be overturned and replaced with other principles, that may be done only by the United States Supreme Court. SeeThurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535, 75 L. Ed. 2d 260, 103 S. Ct. 1343 (1983). And until that is done,Roe and its progeny continue to be the law we are bound to follow.

In summary then, it is our opinion that by virtue of Roe, RCW 9.02.010 remains unenforceable to the extent that it would prohibit abortions prior to viability and that theWebster decision has not altered Washington law in this respect.

We trust that the foregoing will be of assistance to you.

Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

MAUREEN HART
Sr. Assistant Attorney General

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