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In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court replaced the trimester framework, first articulated nineteen years earlier in Roe v. Wade, with a new test for determining the constitutionality of abortion regulations — the “undue burden standard.” The Court’s 2007 decision in Gonzales v. Carhart was its most recent occasion to use the undue burden standard, as the Court was called upon to ascertain the constitutionality of the Partial-Birth Abortion Ban Act, a federal statute proscribing certain methods of performing second- and third-trimester abortions. A majority of the Court held that the regulation was constitutionally permissible, finding that it did not impose an undue burden on a woman’s right to terminate her pregnancy. In order to determine why it is that the undue burden standard has been incapable of striking down laws that limit a woman’s ability to elect an abortion, this Article conducts a close reading of Carhart. The close reading reveals Carhart to be, at base, a logically sound opinion; however, its primary and fundamental weakness is that it proceeds from a highly problematic and disputed assumption — namely, that the fetus is a morally – consequential entity. It is this magnificently undecided presupposition that forms the basis of the Carhart majority’s argument that abortion harms women, a contention for which the decision has gained notoriety. Furthermore, the undue burden standard has come to reflect this presupposition inasmuch as the standard, too, presupposes the inherent “life” and moral value of the fetus. As such, this Article argues that the undue burden standard has become ineffective because, built into it at present, are assumptions about the always already valuable “life” of the fetus that, in any given instance, overdetermine the questions that the Court asks when weighing the constitutionality of a regulation that limits abortion by protecting fetal “life.” When the standard presupposes the existence of a valuable fetal “life,” it is likely that any legislation aimed at protecting that “life” will pass constitutional muster. The Article attempts to rehabilitate the standard by proposing an “agnostic undue burden standard” — that is, an undue burden standard that proceeds from the assumption that the moral status of the fetus is not known. The agnostic undue burden standard would ensure that the state corrupts neither the pregnant woman’s ability to contemplate the moral status of the fetus that she carries nor her ability to contemplate whether the moral status so accorded should affect her decision to continue her pregnancy. If reconceptualized in the way that this Article proposes, an undue burden might be thought to reference those measures that impose upon the woman a conception of the inherent, moral value of fetal life — in derogation of her own personal views concerning fetal life, or in derogation of whether she believes that those views should determine the trajectory that her pregnancy takes.


Boston University School of Law Working Paper No. 11-40

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