Casey v. Planned Parenthood of
Supreme Court of the United
SUMMARY OF ARGUMENT
The central premise of Agudath Israel's argument is that
characterization of the right to abortion as "fundamental" need not be
a matter of always or never.
- In most cases, where the sole constitutional source of the
claimed right to abortion is the personal liberty/privacy right
developed in Roe v. Wade, 410 U.S. at 152-53, the right
to abortion should not be accorded the status of a "fundamental"
right. Accordingly, legislative measures designed to restrict the
availability of abortion - such as the Pennsylvania statutes at
issue here -- should generally be upheld even in the absence of
any compelling state interest, so long as there is a rational
basis for the legislation.
- There are times, though, when a woman's claimed right to an
abortion is grounded not only in her personal liberty/privacy
right, but also in another constitutionally protected interest.
For example, when abortion is an expression of the mother's religious
beliefs, her constitutional claim is enhanced by her First
Amendment right freely to exercise her religion. In such cases --
presenting the type of favored "hybrid situation" this Court
acknowledged in Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872, 882 (1990) --
access to abortion is indeed a right that is "fundamental," and
may not be abridged absent a countervailing compelling state