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University of California - Davis




Since the Supreme Court’s decision in Roe v. Wade, scholars have been preoccupied with the test that ought to be applied to abortion regulations. Debate has swirled around the question of whether laws that burden the abortion right should be reviewed with strict scrutiny, rational basis review, or some other multi-factor or categorical test and at what point during pregnancy these tests are appropriate. Moreover, since Planned Parenthood v. Casey, in which the Court replaced Roe’s trimester framework with the undue burden standard, commentators have questioned the propriety of this new test. This Article argues that the most important change from Roe to the present has not been the test that the Court has used to determine the constitutionality of abortion regulations, but rather the Court’s departure from the position that Roe took with regard to the moral status of the fetus. The Court in Roe either remained agnostic on the question of the fetus’s moral status (the tack that the majority proclaimed to take) or decided that the fetus was not an entity of moral value (the tack that some commentators proclaim was actually taken). In stark contrast, the present Court, as demonstrated by its opinion in Gonzales v. Carhart, appears to have decided that the fetus is a morally consequential entity — a “life.” Accordingly, this Article has four goals. First, it aims to elaborate the notion of “life” — conceptualized as a powerful socio-cultural idea that is not properly understood as equivalent to biological life, insofar as “life” has moral consequence and the protection and veneration of it is a moral imperative. Second, it aims to demonstrate that the undue burden standard is a balancing test, requiring courts to weigh governmental interests against individual liberties. Third, it aims to use the example of the undue burden standard to demonstrate the general problem with balancing tests in constitutional law and the need for a developed theory of governmental interests. Fourth and finally, it aims to show that the effectiveness of any balancing test designed to protect abortion rights — whether it is strict scrutiny, rational basis review, or the undue burden standard — depends on the elements that the Court plugs into the test. When the Court plugs “life” into a balancing test — that is, when the Court weighs the state’s interest in protecting fetal “life” against the woman’s liberty interest in obtaining an abortion — the test is guaranteed to protect the abortion right ineffectively.

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