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| Pro-Life Activists, March for Life, 2015 (Credit: American Life League) |
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.
