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, days after the Supreme Court decided Webster v. Reproductive Health Services, and analyzed the status of Maryland abortion statutes that no longer exist in their 1989 form. The opinion's own logic anticipated further Supreme Court action: it flagged three then-pending cases (Turnock v. Ragsdale, Ohio v. Akron Center for Reproductive Health, and Hodgson v. Minnesota) as capable of changing the analysis, and a companion 1990 Maryland opinion, 75 Opinions of the Attorney General 3 (1990), confirms that the two 1990 decisions did not overrule Roe. The Maryland statutory restrictions this opinion discussed, HG §20-208 and related provisions, were themselves repealed the following year by Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991. Since then, the U.S. Supreme Court overruled Roe v. Wade outright in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), returning abortion regulation to the states under a constitutional framework entirely different from the one this opinion applied. This page is a historical record of how Maryland's Attorney General analyzed one Supreme Court decision's effect on state law in 1989; it describes what the opinion concluded at the time and is not a statement of current Maryland or federal law. Verify current abortion law directly before relying on anything here.

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 constitutional-avoidance principle that only the Supreme Court may overrule its own precedents (Thurston Motor Lines v. Jordan K. Rand), 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, the later repeal (per this file's editor's note context) of the statutory restrictions discussed in this opinion

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 foundational decision whose framework Webster's plurality criticized but did not overrule (later overruled itself by Dobbs v. Jackson Women's Health Organization in 2022, well after this opinion issued)
• 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.