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Casey v. Planned Parenthood of
Southeastern Pennsylvania

Supreme Court of the United
States (1991)


In Typical Cases, Where the Sole Constitutional Source of the Claimed Abortion Right Is the Personal Liberty/Privacy Interest, Abortion Should No Longer Be Deemed a "Fundamental" Constitutional Right

In Bowers v. Hardwick, 478 U.S. 186 (1986), the Court had occasion to consider the factors that go into the making of a right or liberty that is "fundamental":

"Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U.S. 319, 325, 326, (1937), it was said that this category includes those fundamental liberties that are 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if [they] were sacrificed.' A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (opinion of Powell, J.), where they are characterized as those liberties that are 'deeply rooted in this Nation's history and tradition.' Id., at 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S., at 506."

Id. at 191-92. Applying these formulations to the asserted right of homosexuals to engage in acts of consensual sodomy, the Court in Bowers noted that proscriptions against such acts had strong historical roots, both from ancient times and in the laws of the various states for most of this nation's history.

"Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious." id. at 194.

The same can be said with respect to most cases of abortion: It is facetious, at best, to claim that abortions of convenience are deeply rooted in our history and tradition, or that they are a necessary component of ordered liberty. We need not dwell on the point, since the Court has heard it made many times over in the years since Roe, both from within and without. Suffice it for us to reiterate the persuasive analysis offered by Justice White, dissenting in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 793-94 (1986):

"If the woman's liberty to choose an abortion is fundamental, then, it is not because any of our precedents (aside from Roe itself) commands or justifies that result, it can only be because protection for this unique choice is itself 'implicit in the concept of ordered liberty' or, perhaps, 'deeply rooted in this Nation's history and tradition.' It seems clear to me that it is neither. The Court's opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people, as does the continuing and deep division of the people themselves over the question of abortion. As for the notion that choice in the matter of abortion is implicit in the concept of ordered liberty, it seems apparent to me that a free, egalitarian, and democratic society does not presuppose any particular rule or set of rules with respect to abortion. And again, the fact that many men and women of good will and high commitment to constitutional government place themselves on both sides of the abortion controversy strengthens my own conviction that the values animating the Constitution do not compel recognition of the abortion liberty as fundamental."

Indeed, as Professor Laurence H. Tribe (himself an outspoken critic of the Bowers decision) has noted (Tribe, American Constitutional Law at 1430 (2d Ed. 1988)), there is a factor present in the abortion context that renders abortion even less deserving of "fundamental rights" protection than consensual sodomy: the irrevocable harm done to the fetus. Whereas consensual acts of sodomy, in theory at least, are performed with the full knowledge and acquiescence of the parties involved abortion is not. "The pregnant woman cannot be, isolated in her privacy," observed the Court in Roe, 410 U.S. at 159, a factor that led Justice White to argue -- correctly, in our view -- that the abortion decision "must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy or autonomy." Thornburgh, supra, 476 U.S. at 792 (White, J., dissenting; footnote omitted).

In typical cases, therefore, where a woman's claimed constitutional right to an abortion is grounded solely in her personal liberty/due process rights, the analysis in Bowers leads a fortiori to the conclusion that -- contrary to Roe v. Wade -- the right ought not be deemed "fundamental." Accordingly, states that seek to restrict or prohibit abortions in those cases should be permitted to do so on any rational basis, even in the absence of a compelling state interest. Applying that analysis to the instant case, the statutes at issue should be upheld; Pennsylvania surely had a rational basis upon which to enact these laws -including the law governing spousal notice -- and in a facial challenge against their validity no more than a rational basis need be shown.

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