What does this mean? Does regulation of abortion include flat-out prohibition (as the court has held in other areas of regulation)? Are some prohibitions "reasonable" and others not? Will the court simply defer to legislative judgments of reasonableness as it does when less fundamental rights are at stake? Does the court's new standard permit inquiry into a woman's reasons for abortion, allowing some (say, to avoid birth of a gravely impaired child) and forbidding others (convenience, sex selection)? Legislators will rightly view this portion of [Webster] as an invitation to regulate, to prohibit and, if in doubt, to let things fly and await another Supreme Court adjudication. The non-invitation to return to unspecified "dark ages." The plurality opinion goes on to say that the "dissent's suggestion . . . that legislative bodies, in a nation where more than half of our population is women, will treat our decision today as an invitation to enact abortion regulation reminiscent of the dark ages not only misreads our views but does scant justice to those who serve in such bodies and the people who elect them."

Again, what does this mean? Is this rejection of a new "dark age" consistent with the toleration of abortion bans implied earlier in the Webster decision? Or is the opinion too incoherent to allow us to say? The erosion of fundamental rights doctrine. Finally, the plurality, by careful design, breezes over the idea of fundamental rights, and announces that it believes abortion to be a "liberty interest protected by the Due Process Clause." Of course it is, but this isn't saying much. "Liberty interest" has ordinarily been invoked to describe an infinity of interests without specifying any hierarchy of importance. The main function of the fundamental-rights doctrine, by contrast, is to construct just such a hierarchy by marking certain liberty interests for special protection.

Critics who focus solely on abortion are missing the court's not-so-hidden point. Webster may portend legislative hegemony not only over abortion, but over procreational autonomy generally; death-and-dying decisions (a whole generation of lower-court cases relied on the omnipotent Roe for a right to die); rights involving treatment for mental disorder; the regulation of pregnancy in order to protect fetuses; the fate of stored embryos and germ cells; fetal therapy; genetic control-a universe of technologies and social and personal arrangements that affect our most intimate interests and indeed our very identities. A few of these possibilities were in fact alluded to in Webster, but [Sandra Day O'Connor] bypassed as "too hypothetical" both Justice John Paul Stevens' problem with post-fertilization contraception, and issues concerning in vitro fertilization and "excess fertilized ova."