GPO-CONAN-2017-10-15.pdf

599 webster however exposed a split in the courts

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599 Webster , however, exposed a split in the Court’s approach to Roe v. Wade . The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe , but found no occasion to overrule it. Instead, the plurality’s approach sought to water down Roe by applying a less stringent standard of review. For instance, the plurality found the viability testing requirement valid because it “permissibly furthers the State’s interest in protecting potential human life.” 600 Justice O’Connor, how- ever, concurred in the result based on her view that the require- ment did not impose “an undue burden” on a woman’s right to an abortion, while Justice Scalia’s concurrence urged that Roe be over- ruled outright. Thus, when a Court majority later invalidated a Min- nesota procedure requiring notification of both parents without ju- dicial bypass, it did so because it did “not reasonably further any legitimate state interest.” 601 Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life after vi- ability, and hence did not challenge Roe’s ‘trimester framework. 602 Nonetheless, a majority of Justices appeared ready to reject a strict trimester approach. The plurality asserted a compelling state inter- est in protecting human life throughout pregnancy, rejecting the no- tion that the state interest “should come into existence only at the point of viability;” 603 Justice O’Connor repeated her view that the trimester approach is “problematic;” 604 and, as mentioned, Justice Scalia would have done away with Roe altogether. 599 Ohio’s requirement that one parent be notified of a minor’s intent to obtain an abortion, or that the minor use a judicial bypass procedure to obtain the ap- proval of a juvenile court, was approved. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990). And, while the Court ruled that Minnesota’s requirement that both parents be notified was invalid standing alone, the statute was saved by a ju- dicial bypass alternative. Hodgson v. Minnesota, 497 U.S. 417 (1990). 600 492 U.S. at 519–20. Dissenting Justice Blackmun, joined by Justices Bren- nan and Marshall, argued that this “permissibly furthers” standard “completely dis- regards the irreducible minimum of Roe . . . that a woman has a limited fundamen- tal constitutional right to decide whether to terminate a pregnancy,” and instead balances “a lead weight” (the State’s interest in fetal life) against a “feather” (a wom- an’s liberty interest). Id. at 555, 556 n.11. 601 Hodgson v. Minnesota, 497 U.S. 417, 450 (1990). 602 492 U.S. at 521. Concurring Justice O’Connor agreed that “no decision of this Court has held that the State may not directly promote its interest in potential life when viability is possible.” Id. at 528.
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