The Smokescreen Problem in Abortion Jurisprudence: How the Undue Burden Standard and Long-Term Legislative Tactics Allow Courts to Turn a Blind Eye to True Legislative Intent.

AuthorDowning, Lucy

    The issue of abortion has been passionately debated in this country for many years. For decades, our legal system has recognized that legitimate interests in the subject lie with both women and the State. (1) From the time the right of free choice was found to be granted by our Constitution in Roe v. Wade, however, the legal standard with which to assess these competing interests has been a source of debate and confusion. (2) Abortion is undoubtedly an issue that implicates deeply rooted moral considerations for many people, but the United States Supreme Court has carefully undertaken the responsibility of formulating rules that insulate certain moral beliefs from legal analyses of abortion. (3)

    In Roe, the Court articulated the first standard used to assess abortion regulations: the trimester framework. (4) In short, this standard defined when within a woman's pregnancy a state may act and which purpose it may further while doing so. (5) Due to the rigidity of the trimester framework, the Court articulated a new standard almost twenty years later in Planned Parenthood of Southeastern Pennsylvania v. Casey: the undue burden standard. (6) This standard remains today and allows state regulation at any point in pregnancy, so long as the regulation is not unduly burdensome to women seeking an abortion.

    The abortion debate has become more polarized since Roe, and state legislatures have taken increasingly aggressive measures in limiting abortion to the greatest extent possible under the existing legal framework. (7) Further, the undue burden standard set out in Planned Parenthood of Southeastern Pennsylvania v. Casey is unclear in many ways, specifically on how courts should assess the burden of anti-abortion legislation when it offers no true purpose other than to incrementally put an end to the abortion right. (8) Indeed, the standard has allowed many of these laws to pass constitutional muster. Such a law may, under Casey, satisfy the undue burden test merely because those challenging the law cannot prove definitively that it will actually unduly burden women's access before taking effect. In this way, the standard essentially mandates that every law be challenged as applied, assuring that there is no coherent framework or precedential value when the Supreme Court strikes down a given restriction. (9)

    This problem is compounded by the increase in discretionary state agency action motivated by hostility toward the abortion right because the undue burden standard fails to account for such behavior, no matter how prevalent it may be in some states. District courts are in a position to tease out improper legislative motives behind abortion restrictions, but the undue burden standard allows courts of appeals to willfully ignore district court findings that show improper legislative purpose and instead argue about whether the law will impose an undue burden on access in effect. The delegation of authority and discretion to state agencies, like the Missouri Department of Health and Senior Services, for example, provides an additional smokescreen that enables the courts to feign ignorance about the true motivations behind certain restrictive and arbitrary laws.

    Some restrictive measures are motivated by legislatures' legally recognized and legitimate interests in protecting women's health or protecting potential life, but many measures are instead motivated by legislators' moral beliefs about abortion. (10) The ability of courts to tease out the real motivation behind a law restricting abortion depends on the effectiveness and propriety of the legal standard used. Legal standards--in their formulation or interpretation--can be skewed to value one side's interests over the other's, to turn a blind eye to improper motivations behind restrictive laws, or to disregard substantial burdens or benefits faced by one side. Indeed, these have been complaints lodged against the legal standards that have been used to review abortion cases.

    With two newly appointed conservative justices, the Supreme Court recently struck down another restrictive state abortion law, reiterating that the undue burden standard is the proper test. (11) This Note discusses how the undue burden standard fails to meaningfully protect the abortion right in the current polarized political climate. Part II outlines the relevant history of the legal standards used in abortion cases. Part III illustrates a problematic interpretation of the undue burden standard as it relates to the Supreme Court's most recent abortion-related decision in June Medical Services v. Russo. Part IV then discusses how discretionary state agency action in states like Missouri exacerbate the problems associated with the legal standard. Part V concludes by reiterating how the undue burden standard has allowed for the gradual destruction of the abortion right to near-nonexistence in states like Missouri.


    While the United States Supreme Court has decided many abortion-related cases, this section outlines two major decisions that impact the standard courts use to assess abortion regulations: Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

    1. Roe v. Wade

      Roe v. Wade is a foundational decision within the United States Supreme Court's abortion jurisprudence. While courts no longer use the trimester framework established in Roe, its essential holding that women have a constitutional right to abortion and its careful examination of the countervailing interests involved in the abortion debate remain imbedded in the standard used today. (12)

      In the landmark 1973 decision, the Supreme Court struck down as unconstitutional a Texas statute that made it a crime to procure or attempt an abortion at any stage in pregnancy, except when necessary to preserve the woman's health. (13) Writing for the majority, Justice Blackmun held that the concept of personal liberty found in the Due Process Clause of the Fourteenth Amendment was broad enough to encompass a woman's decision to terminate her pregnancy. (14) He noted, however, that this fundamental privacy right is "not unqualified and must be considered against important state interests in regulation." (15) The Court held that, at certain points in pregnancy, legitimate state interests become sufficiently compelling to allow for state regulation of the right. (16) Nevertheless, Justice Blackmun emphasized that a regulation limiting a fundamental right may be justified only by a compelling state interest, and regulations "must be narrowly drawn to express only the legitimate state interests at stake." (17)

      Justice Blackmun continued by analyzing the different state interests at play in abortion legislation, their legitimacy, and when--if they are legitimate--they may become sufficiently compelling to justify regulation. (18) In evaluating which interests a state may legitimately have in a woman's abortion decision, the Court looked to three historic justifications for the enactment and continued existence of laws criminalizing abortion. (19) First, the Court found that some of these laws were historically meant to "deter illicit sexual conduct." (20) The argument that this could remain an appropriate purpose was quickly dismissed, and Texas did not argue that its criminal statute was enacted with this purpose. (21)

      Second, the Court noted that the purpose behind other historic criminal abortion laws was to protect women from the hazards once associated with the abortion procedure. (22) Abortion mortality rates were high when most criminal abortion statutes were enacted, especially prior to the development of antibiotics in the 1940s, so some states criminalized abortion with the purpose of shielding women from the dangers associated with the medical procedure. (23) However, Justice Blackmun stated that "modern medical techniques" at the time of the opinion in 1973, rendered abortion procedures at least as safe as childbirth--if not more so--especially when done within the first trimester of pregnancy. (24) Thus, "any interest of the State in protecting the woman from an inherently hazardous procedure... [had] largely disappeared" by the 1973 decision. (25) The Court noted, however, that because the risks associated with abortion increase as pregnancy continues, states retain a legitimate interest in protecting women's health and maintaining medical standards in later-stage abortions. (26) Thus, the Court found that a state's interest in women's health becomes sufficiently compelling to justify regulation after the end of the first trimester. (27)

      Lastly, the Court examined a state's interest in protecting life as a purpose behind criminal abortion statutes. (28) Some criminal abortion statutes were enacted with the purpose of allowing states to carry out their general interest in protecting the life of their citizens, under the assumption that life begins at conception. (29) However, Justice Blackmun rejected the notion that states have a legitimate interest in protecting life at all stages of pregnancy. (30) Without accepting the notion that life begins at conception, he instead held that, "[i]n assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone." (31) The Court then held that a state's interest in potential life becomes compelling at "viability," meaning the point at which a fetus is capable of surviving outside the womb. (32)

      Thus, the Roe Court adopted what came to be known as the "trimester framework" because, it argued, this was the best way to reconcile a woman's fundamental right to choose to have an abortion with competing legitimate state interests. (33) Implicit in the trimester framework is the Court's recognition of the notion that a state cannot...

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