Did the Supreme Court's 1989 Webster decision make Maryland's old abortion restrictions enforceable again?

Plain-English summary

Days after the U.S. Supreme Court decided Webster v. Reproductive Health Services in 1989, two state senators and a delegate asked Maryland's Attorney General whether that ruling changed the status of Maryland's own abortion restrictions, several of which had already been held unconstitutional and unenforceable under Roe v. Wade and its progeny. The Attorney General concluded that Webster changed nothing: the decision upheld a Missouri law requiring viability testing, but no single rationale commanded a majority of the Court, so the existing body of Supreme Court precedent holding Maryland's hospitalization requirement, review-authority requirement, and pre-26-week substantive restrictions unconstitutional remained controlling. The opinion cautioned that although Webster signaled some Justices' openness to narrowing or overruling Roe in future cases, it was not itself a sufficient basis for Maryland to resume enforcing restrictions that existing precedent still barred.

Currency note

This opinion was issued in July 1989, shortly after Webster v. Reproductive Health Services was decided. It said pending Supreme Court cases might change the analysis but did not predict their outcomes. Its editor's note says Chapter 1 of the Laws of Maryland 1991 repealed the restrictions discussed in Part I except for parental notification. The note also says Chapter 1's effectiveness was suspended by a referendum petition pending the November 1992 election. This page describes the opinion and its editor's note at that time, not current Maryland law. Verify current law before relying on it.

Common questions

Did the Webster decision give Maryland the green light to enforce its old abortion restrictions again in 1989? No. The opinion concluded that Webster's precise holding, upholding a Missouri fetal-viability-testing requirement, had no counterpart in Maryland law, and that no majority of the Webster Court agreed on a rationale broad enough to disturb the existing precedent that already made Maryland's hospitalization requirement, review-authority requirement, and other restrictions unenforceable.

What did the Webster v. Reproductive Health Services decision actually decide? According to the opinion's own summary, a plurality of the Court (Chief Justice Rehnquist and Justices White and Kennedy) upheld Missouri's viability-testing requirement on the theory that a state may permissibly further its interest in protecting potential human life; Justice Scalia would have gone further and overruled Roe outright; Justice O'Connor supplied the fifth vote on narrower grounds, finding no conflict with existing precedent; and Justices Blackmun, Brennan, and Marshall dissented, warning that Roe's protections "survive but are not secure."

Why didn't the Webster decision just overrule Roe v. Wade? The opinion explained that although the plurality's reasoning would have permitted more state regulation than Roe's trimester framework allowed, the plurality "expressly disavowed any effort to revisit the holding of Roe," and Justice O'Connor's separate, narrower concurrence supplied the case's fifth vote without joining that reasoning, so no majority coalesced around overruling or substantially narrowing Roe in this case.

Background and statutory framework

By 1989, prior Attorney General opinions and court decisions had already held several Maryland abortion provisions unconstitutional under Roe v. Wade and Doe v. Bolton: the substantive limits of HG §20-208(a) restricting when an abortion could be performed during the first 26 weeks of pregnancy (Coleman v. Coleman, applying Roe and Doe v. Bolton), the requirement that all abortions occur in an accredited, licensed hospital under HG §20-208(a) and §20-210(a)(3) (Vuitch v. Hardy; State v. Ingel; City of Akron; Planned Parenthood Ass'n v. Ashcroft), the hospital abortion review authority approval requirement of HG §20-208(b)(2) (State v. Ingel, applying Doe v. Bolton), and the parental notification requirement of HG §20-103, which lacked a bypass procedure for a mature or affected minor (a 1985 opinion applying City of Akron and Bellotti v. Baird).

The opinion then walked through Webster's fractured reasoning in detail. The Missouri law at issue required physicians, before performing an abortion on a fetus of 20 or more weeks' gestational age, to test for viability using medically appropriate examinations, serving an unchallenged Missouri provision barring abortion of a viable fetus except to preserve the mother's life or health. The plurality upheld this testing requirement by rejecting Roe's "rigid trimester analysis" in favor of a standard asking only whether a state requirement "permissibly furthers" the state's interest in protecting potential life. Justice Scalia agreed with the result but would have overruled Roe entirely rather than adopt what he called the plurality's "stingy" holding. Justice O'Connor supplied the decisive fifth vote on the narrowest ground, reasoning that the testing requirement did not conflict with any prior decision and expressly declining to address whether Roe itself should be reconsidered, writing that "there will be time enough to reexamine Roe" when a case actually turned on Roe's validity. The dissenters, Justices Blackmun, Brennan, and Marshall, read the same testing requirement as effectively unbounded and unconstitutional even under a lenient standard, and warned that the plurality's approach signaled Roe's future was "evident and ominous."

Applying this fractured decision to Maryland law, the opinion reasoned that Webster's precise holding did not reach any Maryland statute, since Maryland had no analog to Missouri's viability-testing requirement. And because no rationale commanded a majority, the opinion concluded it could not treat Webster's reasoning as displacing the settled precedent, including Roe, Doe v. Bolton, City of Akron, and their Maryland applications, that already rendered Maryland's restrictions unenforceable. The opinion also addressed the argument, raised by legislators in a letter to the Attorney General, that Webster effectively let states regulate abortion however they wished after the 20th week; it rejected that reading, noting that Webster addressed only a viability-testing requirement, not a wholesale gestational cutoff untethered to actual viability. Citing the principle that only the Supreme Court may overrule its own precedents (Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.), and the practical risk that renewed enforcement of restrictions still barred by existing precedent could expose the state to fee liability under prevailing-party statutes, the opinion counseled a conservative course: existing restrictions already held unconstitutional should not be enforced merely because future decisions might, someday, uphold them.

Citations and references

Statutes:

• HG §20-208(a), the pre-26-week substantive conditions for a lawful abortion
• HG §20-208(a)(1) through (4), the four specific conditions (life endangerment, grave health impairment, fetal deformity, and rape confirmed by a State's Attorney)
• HG §20-208(b)(1), the post-26-week restriction limiting abortion to cases threatening the woman's life
• HG §20-208(b)(2), the hospital abortion review authority approval requirement
• HG §20-210(a)(3), the criminal penalty provision tied to the hospitalization requirement
• §14-504(a)(23) of the Health Occupations Article, physician discipline for abortions performed outside an accredited hospital
• Chapter 470, Laws of Maryland 1968, the original enactment of Maryland's abortion restrictions
• HG §20-103, Maryland's parental notification requirement for a minor's abortion
• Mo. Rev. Stat. §188.029, the Missouri fetal-viability-testing requirement at issue in Webster
• Mo. Rev. Stat. §188.030, Missouri's separate ban on abortion of a viable fetus absent a threat to life or health
• Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991, which the editor's note says repealed the Part I restrictions except parental notification, with effectiveness suspended pending a referendum

Cases:

• Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989), the U.S. Supreme Court decision this opinion analyzed
• Roe v. Wade, 410 U.S. 113 (1973), the decision whose framework Webster's plurality criticized but did not overrule
• Doe v. Bolton, 410 U.S. 179 (1973), Roe's companion case, applied to strike various Maryland restrictions
• Coleman v. Coleman, 57 Md. App. 755, 760, 471 A.2d 1115 (1984), Maryland Court of Special Appeals decision holding the pre-26-week substantive restrictions unconstitutional under Roe and Doe
• Vuitch v. Hardy, 473 F.2d 1370, 1371 (4th Cir. 1973), Fourth Circuit decision underlying the conclusion that Maryland's hospitalization requirement was unenforceable
• State v. Ingel, 18 Md. App. 514, 519, 521, 308 A.2d 223 (1973), Maryland Court of Special Appeals decision holding the hospitalization and review-authority requirements unconstitutional
• City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 438-39 (1983), U.S. Supreme Court decision striking down a comparable hospitalization requirement
• Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 481-82 n.6 (1983), U.S. Supreme Court decision cited alongside City of Akron on the hospitalization requirement
• Bellotti v. Baird, 443 U.S. 622 (1979), U.S. Supreme Court decision requiring a bypass procedure for parental notification laws
• Maher v. Roe, 432 U.S. 464, 474 (1977), U.S. Supreme Court decision on state funding of abortion, quoted in the Webster plurality opinion
• Colautti v. Franklin, 439 U.S. 379, 396 (1979), U.S. Supreme Court decision on state regulation of the viability determination
• Baldwin v. Missouri, 281 U.S. 586, 595 (1930), cited in Webster for Justice Holmes' dissenting criticism of an undefined legal standard
• Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983), cited for the principle that only the Supreme Court may overrule its own precedents
• Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731, 734, 741 (7th Cir. 1986), Seventh Circuit decision (Posner, J.) discussing when a lower court might depart from higher-court doctrine it expects to be overruled

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 3-18 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ABORTIONS

State Regulation - Webster v. Reproductive Health Services - Webster Decision Does Not Change Status of Current Maryland Law

July 20, 1989

The Honorable Barbara A. Hoffman
The Honorable Leo E. Green
Senate of Maryland

The Honorable Samuel I. Rosenberg
Maryland House of Delegates

You have requested our opinion concerning the effect of Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989), the Supreme Court's recent abortion decision, on Maryland's existing laws restricting abortions.

For the reasons stated below, we conclude as follows:

The Webster decision does not change the status of Maryland's current laws on abortion. Those restrictions that are unconstitutional and unenforceable as a result of prior Supreme Court decisions remain so. To be sure, future Supreme Court decisions, including decisions in cases now pending before the Court, might well change the constitutional status of Maryland's laws.1 But until they do, the only proper course is to await the actual decisions before concluding that these laws are once again enforceable.

1
In a separate request dated July 13, 1989, Senator Hoffman and Delegate Rosenberg have posed a number of questions about the potential effect of three abortion cases to be heard by the Supreme Court at its next term. See 57 U.S.L.W. at 3851-52. We shall discuss these questions in an opinion to be issued later.

I

Maryland's Restrictions on Abortion

In 1968, five years before the Supreme Court's landmark decision in Roe v. Wade, 410 U.S. 113 (1973), the General Assembly enacted a series of provisions "relating generally to the termination of human pregnancy in this State." Chapter 470, Laws of Maryland 1968. These provisions were not substantively changed when they were incorporated into the Health-General Article ("HG" Article) in 1982.2 Nor have they been repealed or significantly amended since.

After Roe, its companion case of Doe v. Bolton, 410 U.S. 179 (1973), and several later Supreme Court cases overturning state restrictions on abortion, the courts and this office concluded that various provisions of Maryland law were unconstitutional. Without repeating the prior analysis, we shall summarize the status of the most important of these provisions.

First, the 1968 legislation directly limited the circumstances under which an abortion was permissible.3 HG §20-208(a) permits an abortion only "if one or more of the following conditions exist":

(1) continuation of the pregnancy is likely to result in the death of the mother;

(2) there is a substantial risk that continuation of the pregnancy would gravely impair the physical or mental health of the mother;

(3) there is a substantial risk of the birth of the child with grave and permanent physical deformity or mental retardation;

(4) the pregnancy resulted from a rape committed as a result of force or bodily harm or threat of force or bodily harm and the State's Attorney of Baltimore City or the county in which the rape occurred has informed the hospital abortion review authority in writing over his signature that there is probable cause to believe that the alleged rape did occur.

2
The legislative history supports the view that the reenactment of these provisions was intended merely to maintain the status quo, necessarily including "existing judicial gloss." Bill Review Letter on House Bill 1/Senate Bill 616 (March 20, 1981). See also General Revisor's Note to HG Title 20, Subtitle 1, Part II (1982 vol. at 303).
3 This restriction presumably was intended to be enforced against doctors and hospitals by licensing authorities; there is no criminal sanction for performing an abortion for a reason other than those specified.

The Court of Special Appeals held that these restrictions on decisionmaking concerning abortion "conflic[t] with the decisions of the Supreme Court" in Roe v. Wade and Doe v. Bolton and therefore were unconstitutional. Coleman v. Coleman, 57 Md. App. 755, 760, 471 A.2d 1115 (1984). Earlier, the Attorney General had reached the same conclusion. 62 Opinions of the Attorney General 3, 7 (1977).

Second, the legislation imposed a more severe limitation on abortions in the third trimester. Under HG §20-208(b)(1), an abortion of a live fetus after the 26th week of gestation is permissible only if continuation of the pregnancy is likely to result in the death of the woman. Because this provision prohibits third trimester abortions that are necessary to protect the health of the woman, the Attorney General concluded that this provision is unconstitutional under Roe. 62 Opinions of the Attorney General at 8.

Third, HG §20-208(a) requires all abortions to take place "in a hospital accredited by the Joint Commission for Accreditation of Hospitals and licensed by the State Board of Health and Mental Hygiene . . . ." In addition, §14-504(a)(23) of the Health Occupations Article subjects to discipline any physician who performs an abortion outside of an accredited hospital. Unlike the other abortion restrictions discussed in this opinion, the requirement that all abortions be performed in hospitals carries a criminal sanction. See HG §20- 210(a)(3).4 Because the Supreme Court had struck down laws requiring first and second trimester abortions to be performed in hospitals, the courts and the Attorney General concluded that the Maryland provisions could not be enforced. Vuitch v. Hardy, 473 F.2d 1370, 1371 (4th Cir. 1973); State v. Ingel, 18 Md. App. 514, 521, 308 A.2d 223 (1973); 70 Opinions of the Attorney General at 15; 62 Opinions of the Attorney General at 9. See City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 438-39 (1983); Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 481-82 n.6 (1983); Doe v. Bolton, 410 U.S. at 193-95.5

4
HG §20-210(a)(3) also imposes criminal penalties on anyone other than a licensed physician who performs an abortion. This provision, with its counterpart in HG §20-208(a), is constitutional. See State v. Ingel, 18 Md. App. 514, 519 (1973).
5
HG §20-208(b)(2) requires that all abortions be approved in writing "by a hospital abortion review authority appointed by the hospital." This provision was also determined to be inconsistent with Doe v. Bolton, 410 U.S. at 198. State v. Ingel, 18 Md. App. at 520; 62 Opinions of the Attorney General at 9.

Finally, HG §20-103 requires, with some narrow exceptions, a physician to give notice to the parents or guardian of a minor prior to performing an abortion. Largely because the provision "offers no alternative procedure whereby an unemancipated minor may demonstrate that she is mature enough to make an informed decision without parental involvement or that, although immature, notification would not be in her best interests," the Attorney General concluded that this notification requirement is unconstitutional. 70 Opinions of the Attorney General 3, 12 (1985). See City of Akron v. Akron Center for Reproductive Health, Inc.; Bellotti v. Baird, 443 U.S. 622 (1979).

II

Webster v. Reproductive Health Services

A. Introduction

We begin with what the Webster decision actually held.6

A majority of the Supreme Court upheld the constitutionality of provisions of Missouri law that made it unlawful for (i) a public employee to perform an abortion not necessary to save the life of the mother and (ii) a public facility to be used for such an abortion. In a portion of his opinion that reflected the views of a Court majority, Chief Justice Rehnquist wrote that, because the Court had already sustained the constitutionality of a state's refusal to fund abortions directly, "it strains logic to reach a contrary result for the use of public facilities and employees. If the State may 'make a value judgment favoring childbirth over abortion and ... implement that judgment by the allocation of public funds' ... surely it may do so through the allocation of other public resources, such as hospitals and medical staff." 109 S.Ct. 3052 (quoting Maher v. Roe, 432 U.S. 464, 474 (1977)).7

6
The Supreme Court found it unnecessary to consider two provisions of Missouri's law. The Court held that the controversy over a provision relating to "encouraging or counseling a woman to have an abortion not necessary to save her life" was moot. 109 S. Ct. at 3053. In addition, a majority of the Court concluded that it was not required to pass on the constitutionality of the preamble to the Missouri law, which stated the Missouri legislature's value judgment that "the life of each human being begins at conception." See 109 S.Ct. at 3049.
7
For the last several years, the General Assembly through budget language has limited the circumstances under which Medicaid funds may be used for abortions. See, e.g., Chapter 14 of the Laws of Maryland 1989 (appropriation item 32.17.01.03). Comparable restrictions are in the regulations of the Medicaid program. COMAR 10.09.02.04G. Such restrictions on Medicaid funding of abortions are constitutional. See Bayne v. Secretary of State, 283 Md. 560, 573 and 576 n.7, 392 A.2d 67 (1978); 62 Opinions of the Attorney General 11, 12 (1977). See also 63 Opinions of the Attorney General 60 (1978).

On the most important issue in the case, the constitutionality of a provision relating to testing to determine fetal viability, the Court was split. Although five Justices agreed that the provision was constitutional, no single rationale commanded a majority. Because this aspect of Webster is most pertinent to an assessment of the current status of Maryland's laws, we examine the respective opinions in some detail.

B. The Plurality Opinion

The plurality opinion by Chief Justice Rehnquist, in which Justices White and Kennedy joined, described the provision as follows:

The viability-testing provision of the Missouri Act is concerned with promoting the State's interest in potential human life rather than in maternal health.
[It] creates what is essentially a presumption of viability at 20 weeks, which the physician must rebut with tests indicating that the fetus is not viable prior to performing an abortion. It also directs the physician's determination as to viability by specifying consideration, if feasible, of gestational age, fetal weight, and lung capacity.8

8 The testing provision, Mo. Rev. Stat. §188.029, is as follows:

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.

The plurality construed this language "to require only those tests that are useful to making subsidiary findings as to viability." 109 S.Ct. at 3054.

109 S.Ct. at 3055. The testing requirement serves the following unchallenged provision of Missouri law: "No abortion of a viable unborn child shall be performed unless necessary to preserve the life or health of the woman." Mo. Rev. Stat. §188.030.

The plurality identified two consequences of the testing provision that led the lower courts, applying the Supreme Court's precedents, to hold it unconstitutional. First, the testing provision "undoubtedly does superimpose state regulation on the medical determination of whether a particular fetus is viable." 109 S.Ct. at 3056. See Colautti v. Franklin, 439 U.S. 379, 396 (1979). Second, "[t]o the extent that the viability tests increase the costs of what are in fact second-trimester abortions, their validity may also be questioned ...." Id. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. at 434-35.

The plurality rejected these criticisms, and with it rejected what it called "the rigid trimester analysis of the course of a pregnancy enunciated in Roe[, which] has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed." 109 S.Ct. at 3056. To the plurality, the state has a fundamental interest in protecting potential human life throughout pregnancy. Id. In order to meet the plurality's constitutional standard, a state requirement related to abortion need only "permissibly furthe[r] the State's interest in protecting potential human life ...." 109 S.Ct. at 3057. Missouri's viability determination provision satisfied that minimal test and, hence, was constitutional.10

9 This provision is constitutional even under Roe: "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." 109 S.Ct. at 3070 (Blackmun, J., dissenting).
10
Because the Missouri testing provision was related to that state's interest in protecting potential human life, rather than the state's interest in protecting maternal health, the plurality had no occasion to discuss the scope of state authority in further- ance of the latter interest. However, there is no reason to doubt that the plurality would apply the same permissive test to state regulations said to further the protection of maternal health.

The plurality acknowledged that its holding "will allow some governmental regulation of abortion that would have been prohibited under the language of cases such as Colautti v. Franklin ... and Akron v. Akron Center for Reproductive Health, Inc. ..." 109 S.Ct. at 3058. However, the plurality expressly disavowed any effort "to revisit the holding of Roe" and concluded that "we leave it undisturbed," albeit "[t]o the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases." Id.

C. Scalia Opinion

Justice Scalia agreed that the Missouri testing provision was constitutional but rejected the plurality's reasoning, which he characterized as "the most stingy possible holding ...." 109 S.Ct. at 3065. He would simply overrule Roe v. Wade, with the consequence that each state could adopt whatever abortion restrictions it wanted, so long as they were rationally related to the legitimate state interests in protecting potential human life and protecting maternal health.

D. O'Connor Opinion

The crucial fifth vote to sustain the constitutionality of the Missouri testing provision was that of Justice O'Connor. She disagreed with the approach of the plurality, observing that it had "proceeded in a manner unnecessary to deciding the question at hand." 109 S.Ct. at 3060. There was no need to narrow Roe or any other decision, in her view, because "I do not understand these viability testing requirements to conflict with any of the Court's past decisions concerning state regulation of abortion." Id. "No decision of this Court," Justice O'Connor pointed out, "has held that the State may not directly promote its interest in potential life when viability is possible." 109 S.Ct. at 3062.

Furthermore, it was clear to Justice O'Connor "that requiring the performance of examinations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be medically imprudent to do so, does not impose an undue burden on a woman's abortion decision." Id. This "undue burden" analysis, which Justice O'Connor developed at length in her dissent in Akron, is in her view the correct approach to assessing state regulation of abortion generally. Although this standard evidently would permit states to regulate abortion more extensively than in the past, exactly where Justice O'Connor draws the line is not clear.11 Indeed, in her view, the burden of the testing required under the Missouri law was so "margina[l]" as to present no conflict with the Court's opinion in Akron. Id.

Hence, Justice O'Connor's concurrence in Webster provides little guidance about her view of state restrictions not presented by the Webster case itself. "When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade," she wrote, "there will be time enough to reexamine Roe. And to do so carefully." 109 S.Ct. at 3061.

11
In Akron, Justice O'Connor explained the standard as follows in her dissent:
[T]he Roe right is intended to protect against state action 'drastically limiting the availability and safety of the desired service,' against the imposition of an 'absolute obstacle' on the abortion decision, or against 'official interference' and 'coercive restraint' imposed on the abortion decision. That a state regulation may 'inhibit' abortions to some degree does not require that we find that the regulation is invalid.
462 U.S. at 464 (citations omitted without elipses).
In Webster, Justice Scalia criticized the "undue burden" standard as one that "'offers no guide but the Court's own discretion,'" and thereby "merely adds to the irrationality of what we do today." 109 S.Ct. at 3066 n.* (quoting Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J. dissenting)).

E. Dissenting Opinions

Justice Blackmun, with whom Justices Brennan and Marshall concurred, would have interpreted the Missouri testing provision (as the lower courts did) to "requir[e] the physician to undertake whatever tests are necessary to determine gestational age, weight, and lung maturity, regardless of whether these tests are necessary to a finding of viability, and regardless of whether the tests subject the pregnant woman or the fetus to additional health risks or add substantially to the cost of an abortion." 109 S.Ct. at 3070. Thus construed, the provision is irrational and hence unconstitutional even under the lenient rational basis standard of review. Id.12 On the other hand, "[i]f, 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 ..., then [the dissenters saw] little or no conflict with Roe." Id.

12
Justice Stevens agreed with this analysis. 109 S.Ct. at 3080. His separate opinion went on to explain why, in his view, the Missouri preamble (see note 6 above) violated the First Amendment.

More generally, Justice Blackmun observed that, "Today, Roe v.
Wade, ... and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive but are not secure." 109 S.Ct. at 3067. Because of the plurality's "proposed revolutionary revision in the law of abortion ...," the "signs" about Roe's future "are evident and ominous ...." 109 S.Ct. at 3079. Newly enacted restrictions on abortion "will satisfy the plurality's non-scrutiny, until sometime, a new regime of old dissenters and new appointees will declare what the plurality intends: that Roe is no longer good law." 109 S.Ct. at 3077.

III

Impact on Maryland Statutes

A. Holding and Rationale of Webster

When we examine the impact of a Supreme Court decision, the starting point of our analysis is the holding of the case. Sometimes, a Maryland statute is so similar to one actually before the Supreme Court that the Court's holding directly affects the status of the Maryland law. So, for example, certain provisions of Maryland's abortion laws were so similar to those held unconstitutional by the Supreme Court in Doe v. Bolton that the Attorney General needed only to cite the Supreme Court case in support of his conclusion that these laws were unconstitutional. See 62 Opinions of the Attorney General at 7 and 9.

By contrast, the precise holding in Webster has no effect on Maryland law. Maryland has no provision akin to the Missouri provisions upheld in Webster.

Beyond the exact holding of a Supreme Court decision, we must also consider the reasoning that led to particular result. The Court's rationale in determining the constitutional status of another state's law might be so plainly pertinent to a Maryland law that we can apply the decision, even if the respective laws are not identical. So, for example, this office concluded that the parental notification requirements in HG §20-103 were unconstitutional, applying the analysis in several Supreme Court decisions that discussed other states' parental notification schemes. See 70 Opinions of the Attorney General at 12.

By contrast, we cannot determine that the status of Maryland's abortion laws has changed by considering the reasoning in the various opinions in Webster. As we explain in Part II above, no rationale commanded the support of a majority of the Justices; neither the plurality nor Justice O'Connor went further than what they separately considered to be necessary to sustain the Missouri provisions.

It has been suggested that, in effect, Webster authorizes the states to regulate abortion however they wish after the 20th week of gestation. Letter to Attorney General Curran from Senator Francis X. Kelly and Delegate Timothy F. Maloney (July 10, 1989). We do not think that the Court's approval of Missouri's 20th-week testing requirement gives rise to that conclusion, however.

The purpose of testing after 20 weeks is to determine whether the fetus is actually older, and therefore potentially viable.13 If it is viable, Missouri prohibits an abortion except for therapeutic reasons, a restriction permissible under Roe.14 But Webster, particularly in light of Justice O'Connor's concurrence, does not support the suggestion that states are now free to limit abortions after the 20th week without regard to the possible viability of the fetus.

B. Implications of Webster

Webster surely has a dimension beyond its fragmented discussion of the particular provisions of Missouri's law. We do not doubt that Webster is the precursor of a new constitutional doctrine on abortion, one that will be markedly more open to state regulation than the doctrine of Roe and its progeny.

Yet this is an anomalous moment in the development of the law of abortion. Because the plurality in Webster was just that - a plurality, not a majority - Justice Blackmun was right when he observed that "[f]or today, at least, the law of abortion stands undisturbed." 109 S.Ct. at 3079. Justice O'Connor, whose position is crucial, was at pains to make clear her view that the Webster case could have and should have been decided merely by applying past precedent. Her concurrence in Webster permits no more than guesswork about her position when other, more stringent restrictions on abortion come

13 As the plurality pointed out: "The District Court found that 'the medical evidence is uncontradicted that a 20-week fetus is not viable,' and that '23 1/2 to 24 weeks gestation is the earliest point in pregnancy where a reasonable possibility of viability exists.' But it also found that there may be a 4-week error in estimating gestational age, which supports testing at 20 weeks." 109 S.Ct. at 3055 (citations omitted without elipses, emphasis in original).
14 See note 9 above and accompanying text. By contrast, the comparable Maryland provision, HG §20-208(b)(1), prohibits third-trimester therapeutic abortions except if the life of the woman is endangered - that is, even if an abortion is necessary to preserve the health of the woman.

before the Court.15 Quite simply, we cannot conclude that a majority of the Justices has yet arrived at a consensus about the legal principles that will determine the constitutionality of abortion restrictions.

What responsibility does the Attorney General of Maryland have when faced with this extraordinary instability in the law? To be sure, we are often called upon to give legal advice that amounts to a prediction about future court decisions. In the absence of dispositive precedent, we apply the familiar tools of legal reasoning to reach a conclusion about the state of the law - in effect, to predict what the courts will say the law is, if and when they get a case on point.

The problem of Maryland's abortion laws, however, is far different. It is not that we have no binding law on the subject. Quite the contrary: Roe and the cases flowing from it continue to be the law, and, notwithstanding Webster, they continue to render Maryland's abortion restrictions unconstitutional so long as they are the law.

We think that this present fact is not changed by the possibility that a future case might alter the constitutional status of Maryland's laws. If we were, by speculative vote-counting, to transform a future possibility into a present reality, in effect we would be doing what the Supreme Court itself did not do in Webster - overrule Roe and its progeny. We would, moreover, be presuming to do what a federal or state court may not do - overrule Supreme Court cases before the Court itself does so. "Needless to say, only this Court may overrule one of its precedents. Until that occurs, [the prior decision] is the law ...." Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533,

15
Justice O'Connor's disinclination to join the plurality in Webster is surprising, given that in her dissent in Akron she was just as critical of Roe's trimester approach as is the Webster plurality: "[T]here is no justification in law or logic for the trimester framework adopted in Roe." Akron, 462 U.S. at 459 (O'Connor, J., dissenting). Moreover, in Akron, she expressed much the same willingness as the plurality in Webster to depart from the doctrine of stare decisis in the abortion area. Compare Akron, 462 U.S. at 458-59 with Webster, 109 S.Ct. at 3056. We do not know what her apparent caution in Webster implies about her views in future cases.

535 (1983). Cf. 67 Opinions of the Attorney General 48, 50-53 (1982).16

Under these circumstances, we believe that the proper course for those who apply or interpret the law is a conservative one. If the Supreme Court has held that a state statute violates a right guaranteed by the United States Constitution, and a comparable Maryland statute has been held unconstitutional through application of that Supreme Court decision, the statute should not once again be enforced through criminal prosecutions or regulatory sanctions unless the Supreme Court tells us unmistakably that its prior decision is no longer good law. Speculation about what the Court might do next year or the year after is not a sufficient basis on which to go beyond the limits of the law today.17

Our caution about allowing future possibilities to displace presently binding holdings is reinforced by the fact that the Supreme Court will soon issue more abortion rulings, on matters much closer to provisions in Maryland law. The Supreme Court has granted review in one case, Turnock v. Ragsdale, No. 88-790, that involves the constitutionality of a law imposing on abortion clinics regulatory standards like those that hospitals must meet. See 57 U.S.L.W. at 3851. The Court's disposition of this case might well reflect a change in the law sufficient to change the status of Maryland's hospitalization requirement. The two other cases granted review, Ohio v. Akron Center for Reproductive

16
One federal appeals court has expressed the view (in a case not involving constitutional limits on governmental action) that if "events subsequent to the last decision by the higher court approving [a] doctrine - especially later decisions by that court ... - make it almost certain that the higher court would repudiate the doctrine if given a chance to do so, the lower court is not required to adhere to the doctrine." Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th Cir. 1986) (Posner, J.). Even if this view were applicable to the question of whether a state may transgress constitutional limits established in prior cases because it predicts the overruling of those cases, which we doubt, nevertheless Judge Posner has articulated "a high standard [that] will rarely be met." 806 F.2d at 741. Given the continuing uncertainty about Justice O'Connor's views, we cannot say that it is "almost certain" that the Supreme Court would find Maryland's restrictions constitutional.
17 In practical terms, an effort now to enforce restrictions rendered unconstitutional by Roe and its progeny carries with it the risk of significant financial exposure. We believe that the lower courts would find such an effort unconstitutional. If the current restrictions were not ultimately upheld by the Supreme Court, the State would be required to pay the attorneys' fees of those aggrieved by the State's action.

Health, No. 88-805, and the twin appeals styled Hodgson v. Minnesota and Minnesota v. Hodgson, No. 88-1125 and No. 88-1309, involve parental notification statutes. See 57 U.S.L.W. at 3851-52. Again, if the Supreme Court upholds the constitutionality of these state requirements by overruling prior cases, Maryland's parental notification system might well become enforceable.

But this possibility is not a sufficient basis, in our view, for us responsibly to conclude that the State should now ignore federal and State court decisions that render the Maryland restrictions discussed in this opinion unenforceable. Accordingly, we conclude that the status of the State's current abortion restrictions has not changed as a result of Webster.18

Finally, we counsel caution about the enactment of new legislation that assumes the overruling of prior Supreme Court cases. On the one hand, Webster certainly removes any federal constitutional impediment to the enactment of a law like Missouri's, which requires medically reasonable testing to determine viability and prohibits nontherapeutic abortions of fetuses determined to be viable. The General Assembly is free to move in that direction if it chooses to do so as a policy matter.

On the other hand, Webster is not a sufficient basis on which to conclude that a wide range of other possible abortion laws could be made effective. Other requirements or restrictions, inconsistent with Roe and the later cases left unreversed by Webster, might or might not become constitutional depending upon the exact nature of future Supreme Court decisions. If such legislation were enacted and made effective prior to the Supreme Court's hypothesized recasting of the law of abortion, we might be able to conclude that the bills were not "clearly unconstitutional," our standard for bill review, because they

18 In a letter of advice late last year, Assistant Attorney General Kathryn M.
Rowe discussed the effect on these laws of a total overruling of Roe v. Wade. Letter to Delegate Samuel I. Rosenberg (October 6, 1988). Although we agree with Ms. Rowe's analysis and conclusions, the Webster decision did not overrule Roe; hence, the premise of her letter has not occurred.
In light of our conclusion, we need not and do not consider whether any provision of the Maryland Declaration of Rights would affect renewed enforcement of the abortion restrictions, should the United States Constitution no longer render them unenforceable.

might ultimately be sustained if present trends continue. But we would also have to advise that the laws would not then be enforceable. If proposed legislation on abortion is outside current constitutional limits and is thus predicated on a further change in constitutional doctrine, it may be prudent for the bill to have an appropriately delayed effective date.

J. Joseph Curran, Jr.,
Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note:

In Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991, the General Assembly substantially revised Maryland's Law on abortion; except for the parental notification provision, the restrictions discussed in Part I of this opinion are repealed by Chapter 1. The effectiveness of Chapter 1 has been suspended, however, by the filing of a referendum petition. Chapter 1 will be approved or disapproved by the voters at the November 1992 general election.