Webster v. Reproductive Health Services
Like the court below, Agudath Israel of America believes that the Missouri legislature exceeded its constitutional authority in finding that human life begins at conception. We arrive at this conclusion, however, by a totally different route.
I. In our view, Roe v. Wade was decided incorrectly and should be overruled. In most cases, where the constitutional source of the claimed right to abortion is the due process right of privacy developed in Roe, 410 U.S. at 152-53, the right to abortion should not be accorded the status of a "fundamental" right. Accordingly, a legislative measure designed to restrict or prohibit abortion should generally be upheld even in the absence of any "compelling" state interest for the measure, so long as there is a rational basis for the legislation.
II. There are times, though, when a woman's claimed right to an abortion may be grounded not only in her due process right of privacy, but also in her First Amendment right freely to exercise her religion. In such cases, access to abortion is indeed a right that is "fundamental."
III. In developing public policy to regulate abortions, it is not necessary for a state to "find" that life begins from the moment of conception; whether human life is present in actuality or only in potential, a state's interest in protecting the fetus is sufficient to justify abortion regulation.
Nor is it constitutionally permissible for a state to make such a finding. Defining human life as beginning from the moment of conception places the state's imprimatur upon a particular religious belief, in an area that has been the subject of considerable theological and doctrinal dispute. There is a fundamental distinction between defining human life, an inherently theological matter beyond the competence or authority of secular legislative bodies; and regulating human conduct, a secular governmental prerogative regardless of theological perspectives on human life.
This distinction is far from academic. For if a state legislature has the authority to define human life as beginning from the moment of conception, then it is at least arguable that from that moment the fetus is a "person" for purposes of the Fourteenth Amendment, entitled to due process of law before being deprived of life or liberty -- presumably even in cases where the fetus' continued development would endanger the mother's life. "[I]f the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the [preservation of maternal life] exception appear to be out of line with the [fourteenth] amendment's command?" Roe v. Wade, 410 U.S. at 157 n.54.
This conundrum can best be avoided by prohibiting legislative bodies from conferring human status -- "personhood" -- upon fetuses. The establishment clause provides ample basis for such a prohibition.
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