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

(1) at one extreme, the view of the majority in Roe v. Wade, most recently expressed in Justice Marshall's dissenting opinion in Hodgson v. Minnesota, --- U.S. ---, 110 S. Ct. 2926, 2952 (1990) (Marshall, J., dissenting), that abortion is always a "fundamental" right, and that it accordingly can never be burdened absent a compelling governmental interest (947 F.2d at 689);

(2) at the other extreme, the view of the dissenting Justices in Roe v. Wade, that abortion may be burdened even if government has only a rational basis to do so, on the theory that abortion is merely "a species of 'liberty' that is subject to the general protections of the Due Process Clause," Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 790 (White, J., dissenting) but not a "fundamental" right (947 F.2d at 689);

(3) the "middle ground" first articulated by Justice O'Connor in her dissenting opinion in Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 461-65 (1983) (O'Connor, J., dissenting), and reiterated most recently in Justice O'Connor's concurring opinion in Hodgson, supra, 110 S. Ct. at 2949-50, that the right to abortion is a "limited fundamental right" which may not be "unduly burdened" absent a compelling government interest, but may be burdened less severely merely upon a rational basis (947 F.2d at 689-91 ).

Based on its reading of this Court's more recent abortion decisions, the court below concluded that "Justice O'Connor's undue burden standard is the law of the land," 947 F.2d at 698¹"; and accordingly proceeded to review the Pennsylvania statutes at issue under the "undue burden" standard. With but one exception, the court determined that none of the challenged statutes imposed an undue burden on abortion; that Pennsylvania had a rational basis for each of the laws; and that therefore the laws were constitutionally acceptable. The one exception was the law relating to spousal notice, which in the view of the court's majority did impose an undue burden on the right to abortion; was not justified by a compelling state interest; and was accordingly struck down as unconstitutional. 947 F.2d at 698-719.

It is noteworthy that under all three of the approaches identified in the court below, a woman's motivation in seeking abortion is entirely irrelevant to the determination of whether the right is "fundamental." In making that determination, it would seem to matter not a whit under any of the three models whether the abortion is being done to save the mother's life, to preserve her health, to advance her career, to avoid the stigma of single motherhood, to preserve her personal independence, to avoid having a baby of a particular gender, or for any other "convenience, whim or caprice of the putative mother" (Doe v. Bolton, 410 U.S. 179, 221 (1973) (White, J., dissenting.)) Even under the more flexible "middle ground" approach attributed to Justice O'Connor, the variable factor that will determine whether to apply strict scrutiny or rational basis analysis relates to the nature and extent of the burden imposed by government, not the circumstances surrounding the woman's desire to terminate her pregnancy.

As detailed below, Agudath Israel submits that the woman's motivation in seeking abortion ought not be irrelevant to the "fundamental right" determination. Analysis of the Court's definition of rights that are "fundamental" should lead to the conclusion that most abortions do not fit that definition, but that some most assuredly do.

FOOTNOTE 1:
Justice Rehnquist's plurality opinion in Webster v. Reproduction Health Services, 492 U.S. 490 (1989), took pains to avoid embracing any one specific approach to the status of abortion as a "fundamental" right. ("The experience of the Court in applying Roe v. Wade in later cases... suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a 'fundamental right' to abortion..., a 'limited fundamental constitutional right'..., or a liberty interest protected by the Due Process Clause..." 492 U.S. at 520.) As the decision of the court below demonstrates, however, the "abstract differences" between the various formulations have concrete applications; lower courts called upon to evaluate the constitutionality of abortion-related legislation require clear guidance on what the court below characterized as "[t]he threshold question" of the appropriate standard of review. 947 F.2d at 687.