Kalish: Undue Burden

Jul 7, 2016

Whole Woman’s Health v. Hellerstedt was the Supreme Court’s first major decision in 24 years to clarify the constitutional right to abortion. The last occurred in 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey.

Nineteen years before that, Roe v. Wade found a constitutional right to abortion and outlined when states could regulate that right and for what purposes. The Court said that states, if they wished, could regulate abortion during the second trimester for women’s health. In the third, they could ban abortion, if there was an exception to protect women’s lives and health. No regulation was permitted during the first trimester, because, the Court argued, the states’ interest in women’s health and in “potential life” had not yet become “compelling,” a legal term of art.

Term of art or not, the Court saying fetal life wasn’t “compelling” until viability enraged millions. And many states simply rejected the notion that they couldn’t regulate at all until the second trimester. So, states regulated - and did so from the outset of pregnancy. So, the lawsuits began.

Abortion cases started reaching the Court every few years. But, by 1992 it was a very different Court and, as the bench changed, more regulations were being upheld. This couldn’t go on forever: the Court would either need to uphold Roe v. Wade or overturn it.

But, Justice Sandra Day O’Connor had a solution: Casey replaced the rigid trimester framework with a more flexible standard, one that allowed states to regulate – for whatever interest – right from the outset of pregnancy. The new standard asked only whether the regulation put an “undue burden” on the abortion right. No-one knew what an “undue burden” meant. And Casey itself wasn’t much help. But, the new standard slowed the onslaught of litigation.

In the ensuing 24 years, states have used the ambiguity of the undue burden standard and abortion regulations have proliferated. But, eventually this increase created a similar situation: the Court needed to decide whether the “undue burden” standard had teeth, or not.

The reality is that if Roe v. Wade were ever overturned, Vermont probably wouldn’t feel many aftershocks, since there are almost no restrictions on the abortion right here. But perhaps Vermonters can provide leadership while the debate continues by focusing on women’s health, sex education, access to affordable contraception, and assistance for those in abusive relationships, so we can reduce the number of abortions by reducing the need. Something, I think, we can all agree on.