1991 BYU L. Rev. 519 (1991)
A Legal Strategy to Overturn Roe v. Wade after Webster: Some Lessons from Lincoln

handle is hein.journals/byulr1991 and id is 529 raw text is: ESSAY

A Legal Strategy to Overturn Roe v. Wade After
Webster: Some Lessons from Lincoln
Clarke D. Forsythe*
I. INTRODUCTION
The Supreme Court's July 1989 decision of Webster v. Re-
productive Health Services1 has substantially changed the con-
stitutional and political landscape for the issue of abortion in
American society. However, the Webster decision did not return
complete authority to the states to prevent elective abortion. No
clear majority of the Court favoring overturning Roe v. Wade2
emerged. No opinion by a majority of the Court set forth a clear
constitutional standard by which the states can regulate or pro-
hibit abortion. And the Missouri statute upheld by the Court
will have only a tangential impact on abortion practice. Conse-
quently, one commentator has referred to Webster as a non-
decision.3
At the same time, the June 1990 Supreme Court decisions
in Ohio v. Akron Center for Reproductive Health4 and Hodgson
* Allegheny College (B.A. 1980); Valparaiso University (J.D. 1983); Vice-President
& General Counsel, Americans United for Life (AUL), Chicago. I am grateful for com-
ments and criticism on an earlier draft by Edward Grant, Esq., Guy Condon, Paige Cun-
ningham, Esq., Laurie Ramsey, Karen Forsythe, and Walter Weber, Esq., and for re-
search assistance by Mark Wells (J.D. Chicago-Kent, 1990). The opinions expressed are
my own and not necessarily those of Americans United for Life.
1. 109 S. Ct. 3040 (1989).
2. 410 U.S. 113 (1973).
3. Crain, Judicial Restraint and the Non-Decision in Webster v. Reproductive
Health Services, 13 HARV. J.L, & PUB. POL'Y 263 (1990). See also Wardle, Time Enough:
Webster v. Reproductive Health Services and the Prudent Pace of Justice, 41 U. FLA. L.
REV. 881 (1990).
4. 110 S. Ct. 2972 (1990). In this case, the Court upheld, against a facial challenge,

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