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

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":

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):

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.