Assignments
and Student Writing:
A Student's Response to the Roe v. Wade
Essay Assignment
Meagan
Sway's Cover Letter
Meagan Sway's Essay
Dear
Professor Viti,
In my paper, "The Undue Burden Standard: A Burden to Lower Courts,"
I hope to impress upon the reader the ways in which Justice O’Connor’s
creation of the undue burden standard are incorrect ways to evaluate
abortion laws.
I assume in my paper that my reader knows a great deal about Roe
v Wade and Planned Parenthood v Casey. I did have to define
a few terms in my final paper that Andrea and Karyn maintained even
an educated reader might be unsure of. However, for the most part, I
wanted to speak to a well-educated person on the subjects of undue burden
and strict scrutiny.
The main problem I encountered when writing this paper was finding enough
time to write it. The rough draft was written quickly, and the revisions
were more shoddy than usual because I have been "burning the candle
at both ends" (as my dad always accuses me) for too long now. Also,
I found that while I strongly believed what I was saying was right,
I found it difficult to support my ideas with concrete evidence.
This paper is too short, I acknowledge that, and it does not have enough
supporting material to be a truly good paper. I am proud, however, that
I put so much personal thought into this paper. What I wrote came out
of my brain, and it was not a quote-fest of someone else’s work.
I do realize, conversely, that this was a research paper, and
thus not the best essay to display more of what I thought than what
others thought.
If I had more time and some help (entirely my own fault that I did not
create either of those possibilities), I would flesh out my arguments
so that they would hold water against tough critics. I would also acknowledge
more of the opposing viewpoint’s strengths, while picking them
apart and making my own argument stronger. I plan to do all of that
for my portfolio next month.
Sincerely,
Meagan Sway
17 April, 2000
The
Undue Burden Standard: A Burden to Lower Courts
by Meagan Sway
When the Supreme Court decided Planned Parenthood of Southeastern
PA v Casey, 505 U.S. 833 (1992), it effectively reversed the standards
set forth in Roe v Wade, 410 U.S. 113 (1973) to protect a woman’s
right to have an abortion. Although it is true that the Court upheld
the essence of Roe v Wade, the 5-4 decision limited a woman’s
autonomy over her reproductive rights. The Court created the "undue
burden" standard to determine the constitutionality of any given
restrictive abortion law. This standard jeopardizes the future of a
woman’s right to choose abortion. The undue burden standard is
a confusing, misleading opinion by the Court that allows judges in lower
courts to set restrictions on abortion according to their personal opinions.
The opinion in Roe v Wade stated that laws restricting abortions
must go through "strict scrutiny" to determine their constitutionality.
(ˆ1) The Texas laws
in question could not pass the Court’s strict scrutiny, and thus
the Court struck the laws down. The Court agreed with the District Court,
which "held that the appellee failed to meet his burden of demonstrating
that the Texas statute’s infringement upon Roe’s rights was
necessary to support a compelling state interest" (Roe v Wade,
IX). The strict scrutiny standard invalidated most abortion restrictions,
and thus secured relative ease for women seeking abortions.
In subsequent years, as the Supreme Court gained a larger number of
conservative judges, it made contradictory and confusing rulings in
regards to abortion laws. In cases following Roe v. Wade, the
Court complained about the trimester approach that Roe created,
yet it did not strike down Justice Blackmun’s guidelines (Gabel).
The Court claimed that there was no constitutional basis for those guidelines,
but did not suggest an alternative until 1987 when, in a non-abortion
case, it set a new rule. The Court ruled in United States v. Salerno
481 US 739 (1987) that "the challenger must establish that no set
of circumstances exists under which the Act would be valid" in
order to strike down a law that restricted abortion. The "Salerno
laws" made it easier for conservative courts to approve of restrictions
to the woman’s right to have an abortion, since they no longer
used the strict scrutiny test in assessing the laws. Planned Parenthood
v Casey in 1992 created the current constitutionality evaluation,
the "undue burden" test. This test was suggested by Justice
O’Connor, who felt that in using this measure to evaluate abortion
laws, the Supreme Court would still be upholding the core values of
Roe v Wade, while allowing the State to protect its interest
in the potential life of a fetus.
The Supreme Court unwisely ruled that using the undue burden test would
correctly evaluate prohibitive abortion statutes. The Supreme Court’s
opinion set the stage for political judges to decide on a woman’s
freedom of choice. Presidents Reagan and Bush, both Republican and conservative,
appointed many of those on the bench currently considering challenges
to oppressive abortion laws. This conservatism of the courts will bias
the interpretation and validation of laws on the books that favor of
restricting abortion rights. On the other hand, the more liberal President
Clinton has appointed many federal judges during his years in office
as well. Clinton, as most presidents, appointed most of these federal
judges because they were loyal party members. Thus, the liberal judges
could also rule over-leniently in favor of abortion. As the Court’s
minority wrote in Casey, "the undue burden standard adopted
by the joint opinion of Justices O'Connor, Kennedy and Souter will not
result in the sort of simple limitation, easily applied, which the opinion
anticipates." Even judges who mean well, and who want to be as
impartial as possible, will find that the guidelines sent down from
the highest Court in the United States confusing and unhelpful. There
are no strict guidelines for judges to rely upon to decide what is and
is not a "burden" to abortion seekers. There only needs to
be a "substantial" obstacle for a judge to declare a law unconstitutional,
but the definition of "substantial" is necessarily subjective.
For one judge, increasing the cost of an abortion by $100 would not
be a substantial burden for a woman wanting to terminate her pregnancy.
For another judge, this $100 could be seen as a tremendous obstacle
for women who do not have the money to pay the extra fee.
Instead, the strict scrutiny standard of review used in Roe is
the way to insure that every woman can have an abortion if her pregnancy
has not progressed to the point of viability, and if desires to terminate
the pregnancy. Because the strict scrutiny standard is the highest level
of scrutiny in our legal system, using this standard would strike down
laws that the courts currently deem constitutional (law that actually
obstruct the abortion process unfairly). The Court, in upholding the
fundamental right of a woman to have an abortion, needs to protect that
right. The leeway that the court allows in anti-abortion laws does not
protect the woman’s freedom, and that is unacceptable. Under strict
scrutiny, the State must demonstrate that its interest in potential
life, i.e., the fetus, outweighs the woman’s freedom. That burden
of proof was correctly applied, since it was the State that was trying
to limit the woman's inherent right to privacy and reproductive choice.
Under O’Connor’s undue burden standard, those who feel as
though a State’s abortion restrictions are unconstitutional must
prove that they have the right to the freedom that the State curtails.
That placement of burden is unfair and should be remedied by a return
to the "strict scrutiny" standard adopted in Roe v Wade.
ˆ1. Under this test, if a classification scheme affects fundamental rights, it requires a showing that the classification is necessary to, and the least intrusive means of, achieving the compelling state interest. Law Dictionary, Fourth Ed.
Works Cited
Gifis,
Steven H. Law Dictionary, 1996 Ed.
Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Roe v. Wade, 410 U.S. 113 (1973)
United States v. Salerno, 481 U.S. 739 (1987)
Bibliography
Doyle, Sara L. "Planned Parenthood v Casey: Adopting the
Unduly Burdensome Standard". Mercer Law Review (1993).
Gabel, Skye. "Casey "Versus" Salerno: Determining
An Appropriate Standard For Evaluating The Facial Constitutionality
of Abortion Rights. Yeshiva University L. Rev., 1998.
Gifis, Steven H. Law Dictionary, 1996 ed.
Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Quinn, Pamela S. "Preserving minor’s rights after Casey...:the
"new battlefield" of negligence and strict liability statutes."
Duke Law Journal (1999).
Roe v. Wade, 410 U.S. 113 (1973)
United States v. Salerno, 481 U.S. 739 (1987)