Webster v. Reproductive Health Services throws down the gauntlet on the "most politically divisive domestic legal issue of our time," imperiling women's progress in securing reproductive freedom and power in society. The battle over abortion rights is likely to splinter an already deeply divided country. After fierce fighting in many statehouses, some legislatures will pass statutes further restricting abortion. The major battleground, however, will quickly shift to the federal courts, where plaintiffs seeking to protect procreative freedom will challenge these measures. Judges, parties, and lawyers participating in this litigation will rigorously analyze the issues of "substance" that Webster and the new state laws implicate-questions involving the Constitution, privacy, women's rights, precedent, statutory construction, medicine, science, religion, and morality.
In their haste to evaluate these critical issues, they must not overlook the procedural questions and process values at stake. Indeed, if certain procedural problems receive insufficient attention, they may preclude efforts to protect reproductive rights. Issues involving intervention under Federal Rule of Civil Procedure 24 pose significant difficulties and typify the procedural problems that will pervade the anticipated abortion cases. Two protracted pieces of litigation that challenged restrictive abortion laws passed after Roe v. Wade illustrate the complications that may ensue.
Carl Tobias, Intervention After Webster, 38 U. Kan. L. Rev. 731 (1990)