Two Ways of Thinking About the Undue Burden Test After Hellerstedt

By Mary Ziegler*

This week, after the Supreme Court heard argument in Whole Women’s Health v. Hellerstedt, it seems tricky to predict the future of abortion rights. Justice Scalia’s passing and the ambiguity of Justice Kennedy’s stand make any bet on the outcome unwise.

Just the same, history can still give us a sense of what Hellerstedt could mean. The pieces of the puzzle in Hellerstedt—woman-protective arguments, TRAP laws, and a redefined undue-burden test—have been inextricably linked for decades.

In the late 1980s, TRAP laws—pushed by pro-lifers since 1973—took on new importance. At the time, leading activists identified a serious public-relations problem. “The [movement’s] focus on the unborn child neglects . . . the mother,” Mary Ellen Jensen, a public-relations specialist at Americans United for Life explained at the time.[1] “Communicating greater concern for the woman . . . must be one of the objectives.”[2] TRAP laws seemed to be a perfect vehicle. Abortion opponents asserted that TRAP laws protected women against “unqualified physicians, unsanitary conditions or debilitating injury.”[3]

Over time, TRAP laws also became a flash point for conflict about the undue-burden test. Since the 1970s, feminists had seen potential in the idea of an undue burden. Looking at the Court’s decisions on minors’ rights, feminists suggested that the language required some kind of fit between the means and ends of an abortion regulation. Pro-life lawyers responded by arguing that the undue-burden test resembled something like rational-basis review.

Hellerstedt illuminates why incrementalists brought these threads together. Pro-lifers have long contended that abortion restrictions are constitutional when they primarily benefit women. By asking the Court to uphold woman-protective laws without any proof of their efficacy, the movement finally has the chance to convince the Court to transform the undue-burden test.

The case also reminds us that abortion opponents are savvy popular constitutionalists. If the movement gets its way, Hellerstedt will offer a platform to sell woman-protective arguments to everyone, not just the Court. As a pamphlet on the question explained: “Once average citizens realize that women are being hurt by abortion, they will begin to question why we allow abortion at all.”[4]

 

 

* Mary Ziegler is the Stearns, Weaver, Miller Professor at Florida State University College of Law. Her book, After Roe: The Lost History of the Abortion Debate (Harvard University Press, 2015), is the winner of the 2014 Thomas J. Wilson Memorial Prize from Harvard University Press.

[1] Mary Ellen Jensen, “How Public Opinion Polls Should Guide Pro-Life Strategy” (1989), 5, in The Mildred F. Jefferson Papers, Box 13, Folder 6, Schlesinger Library, Harvard University.

[2] Id.

[3] Jim Merriner, Another Group Opposes Settling of Abortion Case, Chi. Sun Times, Sep. 1, 1989, at 8.

[4] Pamphlet, “Post-Abortion Trauma: Learning the Truth, Telling the Truth” (n.d., ca. 1992), in The Feminist Women’s Health Center Collection, Bingham Library, Duke University.

 



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