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Casey v. Planned Parenthood of
Southeastern Pennsylvania

Supreme Court of the United
States (1991)


In Extraordinary Cases, Where the Constitutional Source of the Claimed Abortion Right Includes a Source In Addition to the Personal Liberty/Privacy Interest -- For Example, Cases Where Abortion Is an Expression of Free Exercise of Religion -- Abortion Should Remain a "Fundamental" Constitutional Right

The conclusion that most abortions are not expressions of a "fundamental" right does not mean that all abortions are not expressions of a "fundamental" right. Some are -- and should expressly be recognized as such.

Consider, for example, the case of a pregnant woman whose clergyman advises her to procure an abortion as a matter of religious obligation -- as in fact a rabbi may advise a Jewish woman under certain extraordinary circumstances.2 When that woman seeks an abortion, her claim is constitutionally grounded not only in her general liberty/privacy interest, but also in her First Amendment right freely to exercise her religion. Under such circumstances, the woman's claim to abortion deserves enhanced constitutional status.

Free exercise rights are indisputable "fundamental." E.g., Wisconsin v. Yoder, 406 U S. 205, 214 (1972). Government may not burden free religious exercise unless it can show that "an inroad on religious liberty... is the least restrictive means of achieving some compelling state interest," Thomas v. Review Board of the lndiana Employment Security Division, 450 U.S. 707, 718 (1981); or, as the Yoder Court put it, "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." 406 U.S. at 215. Although the Court has not had occasion to consider the applicability of its free exercise jurisprudence to the abortion context -- Harris v. McRae, 448 U.S. 297, 320-21 (1980), the one case where the issue was raised, was dismissed on this point because the plaintiffs lacked free exercise standing -there is every reason to emphasize both its relevance and importance in any post-Roe regulatory framework.

It is true that in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), five Justices of the Court voted to curtail considerably the scope of the Free Exercise Clause, holding that free exercise protection does not extend to laws of general applicability that burden religious practice only incidentally.3 Nonetheless, even the Smith majority acknowledged that "the First Amendment bars application of a neutral, generally applicable law to religiously motivated action... (where the free exercise claim is advanced] in conjunction with other constitutional protections..." 494 U.S. at 881. Such a "hybrid situation," id. at 882, which under Smith does merit heightened constitutional protection, would appear to be present when a woman seeks abortion as an expression of her religious beliefs; her claim in such cases would be predicated on the twin constitutional bases of liberty/privacy and free exercise.

The interplay between abortion and free exercise of religion is by no means a trivial issue. Currently pending in the House of Representatives are two bills designed to address the Court's ruling in the Smith case: H.R. 2797, the "Religious Freedom Restoration Act," and H.R. 4040, the "Religious Freedom Act." Both bills would make it clear that the protections of free religious exercise apply even in cases where a government action burdens religious practice only incidentally; and that only a compelling governmental interest, applied through the least restrictive means, can overcome an assertion of free exercise of religion. The major difference between the two bills is that whereas H.R. 2797 is neutral on its face and in no way limits the types of claims that may be entitled to the bill's protections, H.R. 4040 expressly excludes several substantive areas from the scope of the bill's protections -- including specifically the area of abortion. Thus, section 3(c)(2) of H.R. 4040 provides: "Nothing in this Act shall be construed to authorize a cause of action by any person to challenge. . . © any limitation or restriction on abortion, on access to abortion services or on abortion funding."

Putting aside for now the legal question of whether the constitution would permit H.R. 4040's exclusion of abortion from the scope of the bill's protection,4 the ongoing debate in Congress over H.R. 2797 and H.R. 4040 makes it abundantly clear that religiously based claims to abortion would encounter considerable resistance in the political arena. It is for this reason that Agudath Israel feels so strongly about the importance of the Court using the earliest possible opportunity to state clearly that the right to abortion is constitutionally "fundamental" when it is asserted in the context of a woman's exercise of her sincerely held religious beliefs. This case affords the Court occasion to do so -- through the enunciation of a standard that would evaluate the circumstances surrounding a woman's claim to abortion in determining whether the claim is entitled to protection as a "fundamental" constitutional right.5


A comprehensive discussion of the Jewish attitude toward abortion, including the circumstances under which abortion may be authorized or compelled under Jewish law, is beyond the scope of this brief. A scholarly analysis of this complex subject appears in Rabbi J. David Bleich's Abortion in Halakhic Literature, reprinted in Volume 1 of the author's Contemporary Halakhic Problems, at 325 (Ktav/Yeshiva University Press 1977).

For the record, Agudath Israel believes the Smith Court's majority erred in its analysis of the Free Exercise clause.

Agudath Israel has argued in a February 14, 1992 memorandum to H.R. 4040's lead sponsor, Congressman Christopher H. Smith, that in fact his bill would violate both the Free Exercise and Establishment Clauses.

There are other contexts in which abortion may rise to the level of a "fundamental" constitutional right. The most obvious example is where the pregnancy threatens the mother's life. Roe v. Wade itself makes clear that abortions in cases involving danger to the mother's life are entitled to enhanced constitutional protection. In those cases, states must permit abortions even subsequent to fetal viability. 410 U.S. at 163-64. See Thornburgh, supra, 476 U.S. at 768-69; Colautti v. Franklin, 439 U.S. 379, 397-401 (1979). Reconsideration of the general rule of Roe that all abortions are "fundamental" rights does not necessarily, and should not, vitiate the enhanced constitutional status of at least those abortions performed to preserve the mother's life. Such abortions, long permitted under the laws of the various states (see Roe, supra, 410 U.S. at 138-40I, are "deeply rooted in this Nation's history and tradition" and, we submit, "implicit in the concept of ordered liberty." Moreover, for a state to deprive a woman the right to abortion even where her life is in danger is not merely to deprive her of some vague sense of a personal liberty "interest"; it is literally to deprive her of the "life" the Fourteenth Amendment expressly protects. Surely abortion in such cases is a right that is "fundamental."

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