Abortion: Supreme Court Should Reevaluate Undue Burden Standard

This 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.

About the Author

Yuval Levin

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs. His most recent book is American Covenant: How the Constitution Unified Our Nation -- and Could Again.

About the Author

Adam J. White

Adam J. White is a senior fellow at the American Enterprise Institute and a co-director of George Mason University’s Gray Center for the Study of the Administrative State.

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This 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.

About the Author

Yuval Levin

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs. His most recent book is American Covenant: How the Constitution Unified Our Nation -- and Could Again.

About the Author

Adam J. White

Adam J. White is a senior fellow at the American Enterprise Institute and a co-director of George Mason University’s Gray Center for the Study of the Administrative State.