‘Undue Burden’ Is an Unclear Rule

by Ramesh Ponnuru

“A Huge Abortion Win in Texas” is Slate’s headline over an Emily Bazelon article, and it accurately characterizes her cheers for a federal judge’s decision to strike down part of an anti-abortion law. And it is, indeed, a win for “abortion,” the assumption of the article being that maximizing access to abortion is the right policy and therefore the right thing for judges to seek. At no point in the article’s discussion of the Texas law does the article mention the Constitution it supposedly violates. Here’s the nearest Bazelon comes to the topic:

[T]he underlying legal question—how far a state can go to restrict access without crossing the constitutional line into saddling women with an “undue burden,” in the Supreme Court’s magical mystery words—remains unresolved. Yeakel took a crack by finding that in combination, the constellation of provisions in the 2013 Texas law creates “unreasonable obstacles” that have “reached a tipping point.”

She’s right that the “undue burden” standard doesn’t really offer much guidance. (Guess which justice has made that point most forcefully?) To come up with a clear rule distinguishing permissible from impermissible abortion regulations, the Court would have to be willing to limit its own discretion, and to sustain the pretense that this rule has something to do with the Constitution. So far it has balked.