The "Undue Burden" Test: It Has Two Parts

I have an article about the Supreme Court and the federal “partial birth” legislation up at TAP. I’d like to add something about the lack of connection between the legislation and any legitimate state interest, and what it says about the “undue burden” test:

Based on the court’s existing precedents, this bill should clearly be struck down. Planned Parenthood v. Casey held that the state cannot regulate abortion in a way that constitutes an “undue burden” on a woman’s right to choose, and Stenberg v. Carhart struck down a similar state statute as being inconsistent with Casey. As Justice Stevens held in the latter case, the law is so arbitrary it’s not clear that it would be constitutional even if abortion wasn’t a fundamental right. It is far from clear what rational connection the legislation — which, as Richard Posner has pointed out, bans an abortion procedure based on which way a fetus’s feet are pointing — bears to any legitimate state interest. Certainly it is not in any way related to the protection of fetal life. At oral argument, Solicitor General Paul D. Clement himself conceded “no woman would be prevented from terminating her pregnancy” because of this law. Moreover, to the extent that it has an impact on woman’s health, it’s a negative one.

Meanwhile, Roe and Casey clearly require a health exemption for a regulation such as this law, and the findings that Congress adduced to claim that the D&X was never medically necessary are, as both District Courts found, blatantly erroneous. And if the “undue burden” standard means anything at all, surely it proscribes legislation wholly unconnected to the preservation of fetal life or a woman’s health, and that in fact places women’s health at risk for the sake of sheer symbolism or political strategy. In Judge Posner’s words in Hope Clinic v. Davis, “if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.“

Judge Posner understands–while Justice Kennedy, in his frankly bizarre claim to have been double-crossed, does not–that the “undue burden” test, to the extent that it has any content at all, is a two-part test. The Solicitor General mentioned again and again that other (if more dangerous) procedures would always be available, presumably to minimize the burden. And, indeed, the extra risk to women’s health might be acceptable if the state had some legitimate interest at stake. But it doesn’t–the statutes certainly don’t protect fetal life or woman’s health, and punishing women for sexual choices is neither asserted as an interest nor a legitimate interest under our current constitutional law. This is the same issue as the error Alito made with husband notification laws. It’s not just the “burden” that’s relevant–one must also consider whether the burden is “due,” and since common law conceptions of marriage have been discredited the state cannot have the same interest in husbands supervising and protecting wives as parents do with respect to children. “Partial birth” laws are even easier cases–if they’re constitutional, then the first word might as well be stricken from the test.