Casey v. Planned Parenthood of
Southeastern Pennsylvania
Supreme Court of the United
States (1991)

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.

1. 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.

2. 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 interest.