Friday, August 14, 2015

The Rise of the Undue-Burden Test

Pro-Life Activists, March for Life, 2015 (Credit: American Life League)
One of the enduring mysteries in constitutional jurisprudence involves the meaning of the undue-burden test in Planned Parenthood of Southeastern Pennsylvania v. Casey. Charting the rise of antiabortion incrementalism made me wonder not about the application of the test but about its origins.


I have only a few clues about where the test came from. Historians have documented the appearance of the undue-burden test in Solicitor General Rex Lee’s 1983 amicus brief in City of Akron v. Akron Reproductive Health Center (Akron I) a case on the constitutionality of what was then the blueprint for incrementalist regulations. But before Akron I, the Court had used similar language in certain kinds of abortion cases—particularly those involving minors and demands for financial support. In defending the Hyde Amendment, leading antiabortion attorneys from Americans United for Life suggested that an undue burden test applied to all abortion regulations. So too did Solicitor General Rex Lee and the Reagan Administration in Akron I.

In 1986, in  Thornburgh v. American College of Obstetricians and Gynecologists, the Court issued its first 5-4 decision on the constitutionality of a multi-restriction law, making clear that Reagan’s nominees could revolutionize abortion law. After Thornburgh, both antiabortion attorneys and their allies in the White House often stopped pushing for the undue-burden test, instead asking for Roe to be overruled altogether.  In a brief signed by Solicitor General Charles Fried, the United States argued that the Court had already adopted an undue-burden test but should go further and abandon the 1973 decision. Attorneys working with the National Right to Life Committee pursued a similar strategy.

Much about this story remains obscure for me. Who came up with the undue-burden test? Did the Reagan Administration borrow from or collaborate with cause lawyers opposed to abortion? How vigorously did antiabortion lawyers come to oppose an undue-burden test when they believed they could convince the Court to overrule Roe?

If my knowledge of the history of the undue-burden test is incomplete, the stakes of the history seem clear. Where the test came from, and whose interests it advanced, may change our understanding of how it works today. At least at some points, antiabortion attorneys promoted the use of an undue-burden approach, viewing it as another weapon in the effort to chip away at Roe. Pro-life attorneys may have seen the test as an important tactic in the broader incrementalist agenda. The Reagan Administration also relied on the test, and administration officials may have treated it as a way of satisfying antiabortion constituents without offending swing voters. A third possibility is that the Court’s undue-burden test, at least as set forth in Casey, differs from any version set out by opponents of the Roe decision. This third account would lend credibility to arguments that the undue-burden test was designed to balance the competing interests of the fetus and the woman.

The politics of the undue-burden test vary considerably in each of these narratives. Possibly, the undue-burden test emerged from the kind of incrementalist approach documented in After Roe. Or the undue-burden test could be what some in the Reagan Administration proposed, a political settlement that could defuse antiabortion anger without straying too far from what most voters seemed to want. Finally, Casey’s test could reflect an honest effort on the part of the Court to grapple with the hard moral and constitutional questions surrounding abortion.

The origins of the undue-burden test certainly deserve further study. As the Court weighs taking certiorari on a pair of abortion cases this fall, the undue-burden test will likely take center stage. We still know far too little about what that means for the future of abortion law and politics.

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