When Roe is finally gone, our obligations to each other should point the way forward.
When Roe is finally gone, our obligations to each other should point the way forward.
T his week, the Supreme Court will hear oral arguments in the case of Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law restricting abortion after 15 weeks of pregnancy. It may be the most significant abortion case in decades, and will compel the Court to decide whether to retain, reform, or renounce its precedents on the subject — that is, its rule against legislation imposing an “undue burden” on the practice of abortion.
As a matter of basic jurisprudence, and even just as a way of propping up the incoherent and pernicious Roe v. Wade precedent that underlies it, the “undue burden” standard has never made much sense. Intended simultaneously to critique and rescue Roe, it has only exacerbated the deformation of the constitutional order wrought by the Court’s contortions of reason and law in that case. The justices would be more than justified in finally renouncing it.
And yet, sometimes even the Court’s worst mistakes cannot help but highlight deeper underlying truths. The very language of “undue burdens,” which implicitly acknowledges that some burdens are due in the course of our living together in society, not only points toward a better way of thinking about abortion that will need to inform the next phase of America’s debates about it but also points well beyond abortion toward a politics that takes our obligations to one another more seriously.
In the hands of the Supreme Court, the language of undue burdens has served almost entirely to deny the reality of those obligations. But in the hands of legislators and citizens, the idea of due burdens could help chart a way forward after Roe.
An Undue Standard
Although Planned Parenthood v. Casey’s “undue burden” standard quickly came to serve as a cudgel against state and local laws to protect the unborn, it originally arose as a limitation, even a criticism, of Roe itself.
Just three years after Roe, in the 1976 case of Planned Parenthood of Central Missouri v. Danforth, the Supreme Court recognized that some laws imposing a “burden” on abortion in the course of regulating the practice could still be constitutional. In a related case that same year, in the course of affirming the regulation of abortions by minors in Massachusetts, the Court even employed the term “undue burdens,” to distinguish (albeit vaguely) impermissible from permitted restrictions.
A few years later, Justice Sandra Day O’Connor wielded the “undue burden” standard much more explicitly as a criticism of Roe itself. In a 1983 case, she dissented from the Court’s decision to strike down several abortion laws under Roe’s trimester-based framework. Arguing that the Roe approach looked increasingly unconstitutional and unworkable, she rejected the notion of “an unqualified ‘constitutional right to an abortion.’” States could regulate or even “inhibit” abortion,” she wrote, so long as they did not impose “an ‘absolute obstacle’ on the abortion decision,” or create “official interference” and “coercive restraint,” or otherwise take action “drastically limiting the availability and safety” of abortions. Most important, O’Connor argued that the state’s interest in the life and health of both the mother and the unborn child ought to be recognized throughout a pregnancy, and not just in the later trimesters. To O’Connor, at least in 1983, some legislative burdens on abortion plainly were legitimately due.
Even in Planned Parenthood v. Casey nine years later, when Justice O’Connor and the majority she joined moved the “undue burden” test to the very center of the Court’s abortion jurisprudence, they reaffirmed — at least nominally — that not all burdens on abortion were undue. “The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted,” they wrote. “Not all burdens on the right to decide whether to terminate a pregnancy will be undue.”
Yet in the wake of Casey, the Court’s approach to state abortion laws largely belied this assurance. An increasingly impatient majority of justices, disappointed perhaps that Casey did not resolve the intense national struggle over abortion, ruled practically all state restrictions out of order. And because the Court never attempted to draw a line between due and undue burdens on abortion — indeed, the 1976 case introducing the term “undue burden” into these debates explicitly declined to “determine what factors are impermissible or at what point review of consent and good cause…becomes unduly burdensome” — it could render the abortion right almost unlimited in practice even while claiming it had limits in principle.
As the justices stretched their own discretion, they exacerbated the incoherence and radicalism of America’s abortion regime. As Harvard’s Mary Ann Glendon and Notre Dame’s Carter Snead have recently pointed out: “the Court’s constantly shifting rationales and standards, along with the general vagueness of the concept of ‘undue burden,’ render this line of precedent unworkable in practice.” A standard so malleable, and so disconnected from the Constitution’s text and history, simply cannot serve as a foundation for principled constitutional analysis by the judiciary. We can hope that the Court will finally admit as much in the Dobbs case.
For the Court as a practical matter, therefore, the language of “undue burdens” has been mostly a cynical way out of taking abortion seriously. But when we look beyond the courts, to the work of legislators and the lives of citizens, the inherent moral logic of the vocabulary of due and undue burdens actually might have a lot to offer.
Burdens of Belonging
The language of due burdens implies a sociology of mutual obligation, in which our connections to others imbue us with benefits and saddle us with burdens simultaneously and in the same way — perhaps not by choice, yet entirely legitimately.
This is the picture of society that underlies the conservative worldview. And it can describe a morally freighted liberal social order, which takes human beings seriously as equal, dignified, rights-bearing creatures without insisting that the making of willful choices is our highest calling. Such a view opposes itself to a more extreme and shallower liberalism that would deny the legitimacy of all unchosen obligations — and therefore of many of the most significant and meaningful human relationships.
As the great Roger Scruton once put it, these more radical liberal theorists speak about society itself “as though it presupposes only the first-person singular of free rational choice. In fact, it presupposes a first-person plural, in which the burdens of belonging have already been assumed.” Society is a whole to begin with, and the relations among the people within it are therefore relations of mutuality, which carry “burdens of belonging” that are altogether due.
No one has put this more starkly, or in a form better suited to helping us see the moral poverty of the modern case for abortion rights, than Edmund Burke. Confronted with a set of arguments, in France but also among the more radical members of his own Whig Party in Britain, that put choice at the center of all legitimate human relations, Burke was moved to articulate the central place of burdensome yet empowering obligations in the lives of human beings. And his brilliant portrait of society began, not by coincidence, with the inescapable facts of procreation and birth, and the limits they unavoidably must place on choice. In his Appeal from the New to the Old Whigs, Burke put it this way:
Dark and inscrutable are the ways by which we come into the world. The instincts which give rise to this mysterious process of nature are not of our making. But out of physical causes, unknown to us, perhaps unknowable, arise moral duties, which, as we are able perfectly to comprehend, we are bound indispensably to perform. Parents may not be consenting to their moral relation; but consenting or not, they are bound to a long train of burdensome duties towards those with whom they have never made a convention of any sort. Children are not consenting to their relation, but their relation, without their actual consent, binds them to its duties; or rather it implies their consent because the presumed consent of every rational creature is in unison with the predisposed order of things. Men come in that manner into a community with the social state of their parents, endowed with all the benefits, loaded with all the duties of their situation. If the social ties and ligaments, spun out of those physical relations which are the elements of the commonwealth, in most cases begin, and always continue, independently of our will, so without any stipulation, on our part, are we bound by that relation called our country, which comprehends (as it has been well said) ‘all the charities of all.’ Nor are we left without powerful instincts to make this duty as dear and grateful to us, as it is awful and coercive.
We should not dull or shy away from the sharp edges of this extraordinary portrait of society. It teems with burdensome duties, and is not very impressed with choice. And yet it comes not as a threat but as a promise. And it describes a vision of life that we can choose to embrace or reject, and that Burke tries to persuade us to choose to embrace because it offers fulfillment, flourishing, and joy — or rather, because it is the truth about us, so that choosing to reject it would mean choosing to live by a lie.
To ignore the burdens that are due as a result of our humanity, or to break the links they create among us and then try to replace those links with choices and contracts, would be to turn us away from each other if not against each other. This is one reason why the call to “pay any price, bear any burden, meet any hardship” for the sake of a cherished ideal is heard as an inspiring invitation in free societies. We know that our burdens define us.
To see due burdens fundamentally as burdens of belonging, moreover, is to understand them as descriptions of what we owe each other as fellow citizens of one society. It is to look at complicated human situations through the prism of obligation, commitment, and belonging, rather than to treat them as confrontations between hostile adversaries defending their rights.
Due Blessings
Judges, of course, must look at human situations through the prism of the Constitution and the laws. There is a difference between the work of the courts and the work of citizens and their representatives. To confuse the two is a dangerous mistake — and it is a common and increasingly bipartisan mistake. But if the courts put the question of abortion back into the public square where it can be taken up in its proper terms, we should approach it with an understanding of what is due to all involved.
That must mean protecting vulnerable children, but it must also mean doing more than reversing the polarity of the rights-based arguments over abortion so that the child rather than the mother could then make unlimited claims over the other. Rather, we would need to see that the two are not isolated individuals locked in a power struggle but a mother and child in crisis together and in need of care and support. That need amounts to a claim on the rest of us too, and the politics of abortion once Roe is finally overturned should be a politics that bears the due burden of that claim, and prioritizes families in need.
And of course, the same logic applies well beyond abortion too. In considering our roles as citizens of a free society, it is crucial that we ask what burdens are due, and so in effect what responsibilities we have. We have some obligations to the past: to sustain and improve what we have inherited, and not to fall into the vain illusion that the people who built all that we now enjoy were fools or scoundrels or that we are any less sinful than they were. We have obligations to the present, too: to respect each other as equals, to build up our society together toward a shared ideal of the good even as we struggle over the meaning of that ideal, and to at least try to forgive each other when we fail in either cause. And there is much we owe the future, which must inform how we think about what we build and tear down and how we use the resources we have.
Each of these sets of commitments also has some constitutional facets — some due burdens to the very framework of our common life. We tend to understand our relation to our system of government in terms of rights, but it needs also to be understood in terms of duties, and therefore of burdens. Citizenship in a free society is demanding. And the institutions of our system must bear some burdens too.
The Supreme Court has plainly failed to bear its own due burden over the past half century of abortion jurisprudence. It has a chance now to correct itself, and we can hope it does. But a real way forward will require more than a judicial reversal. It will require us all to better grasp what we owe one another, to bear the burdens that are due as a result, and ultimately to come to understand those burdens as the blessings that they truly are.
Yuval Levin is director of social, cultural, and constitutional Studies at the American Enterprise Institute. Adam J. White is a senior fellow at the American Enterprise Institute.
Editor’s note: This article has been emended since its original publication.