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Webster v. Reproductive Health Services
Supreme Court of the United States (1988)



One of the pillars upon which Roe v. Wade rests is the Court's determination that the right of abortion protected under the Fourteenth Amendment's due personal liberty/process clause is "fundamental," and thereby protected against state encroachment absent a compelling state interest. 410 U.S. at 155. Under prevailing jurisprudence, the right to abortion is no less "fundamental" when it is being done to avoid the birth of a child of the "wrong" sex (see G. Kolata, Fetal Sex Text Used as Step to Abortion, N.Y. Times Dec. 25, 1988) or for any other "convenience, whim, or caprice of the putative mother" (Doe v. Bolton, 410 U.S. 179, 221 (1973) (White, J., dissenting)), than when it is being done to preserve the life of the mother or allow her to follow her religious beliefs. This need not -- and ought not -- be so.

In Typical Cases, Where the Constitutional Source of the Abortion Right is the Personal Liberty/Our Process Clause, Its Exercise is Not "Fundamental"

Recently, 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 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 in over 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, there is a factor present in the abortion context that in a sense makes abortions of convenience even less deserving of "fundamental rights" protection than consensual sodomy: the irrevocable harm done to the fetus. Whereas consensual acts of homosexual 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 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.

Abortion Does Become A "Fundamental" Right When It Necessary to Preserve the Mother's Life Or Is Mandated Under Her Religious Beliefs

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. Specifically, where an abortion is sought to preserve maternal life, or as an expression of free religious exercise, the right to abortion is indeed "fundamental."

Roe v. Wade itself makes clear that abortions in cases involving danger to the mother's life or health 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 have long been permitted by civilized societies (see, e.g., Mishnah, Tractate Oholot 7:6) and under the laws of the various states (see Roe, supra, 410 U.S. at 138-40). They are accordingly "deeply rooted in this Nation's history and tradition" and, we submit, "implicit in the concept of ordered liberty" -- and therefore entitled to the characterization of a "fundamental" right. 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 personal liberty protected under the Fourteenth Amendment; it is literally to deprive her of the "life" the Fourteenth Amendment expressly guarantees. This a state may not do.

In addition, even if preservation of maternal life by itself would not elevate abortion to the status of a "fundamental" right, there are times when the right to abortion should be deemed fundamental on the basis of the woman's religious beliefs. Under sinaitic Jewish law, for example, danger to a mother's life at any stage prior to parturition requires an abortion. See generally, e.g., Bleich, Abortion in Halakhic Literature, reprinted in the author's Contemporary Halakhic Problems 325, 354-56 (Ktav/Yeshiva University Press 1977). There may exist other situations as well in which a state's decision to outlaw abortion will burden a woman's First Amendment free exercise rights. In those relatively few cases, a rational basis should not be a sufficient basis for proscribing abortion.

Free exercise rights are indisputably "fundamental." E.g., Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). Accordingly, 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 Indiana 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.

Thus, even if the right to most abortions is not fundamental, the right to some abortions -- those necessary to preserve maternal life and those mandated by a woman's religious beliefs -- is. If the Court will indeed use this case as a vehicle to "reconsider[ ] and discard[ ]" the fundamental right/compelling state interest framework of Roe v. Wade" in favor of [a] rational basis test" -- as it suggested it might when it accepted the case for review, and as we have urged it to do with respect to most abortions -- we would respectfully suggest that the Court at the same time emphasize that some abortions must continue to enjoy special status under the constitution.

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