Abortion Rights and Wrongs: Undue Burdens - the Rhetoric Is Pro-'Roe,' but the Reality Is Anti-Choice

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When the Supreme Court struck down the men-only admissions policy at a Virginia military academy this summer, attorneys who have been struggling for more than two decades to insure that our Constitution covers women breathed a collective sigh of relief. The decision in U.S. v. Virginia was significant not only for its robust affirmation of the constitutional protections against sex discrimination but also for its striking contrast to the state of the law concerning another critical area of women's rights: the right to privacy.

In the twenty-three years since Roe v. Wade, we have witnessed a steady decline in constitutional safeguards, culminating in the severely compromised 1992 decision in Planned Parenthood v. Casey. Roe treated the decision to have an abortion like any other fundamental constitutional right. Government had to stay neutral; it could not enact laws that pushed women to make one decision or another. Courts required a state to justify any interference with the right to choose abortion by showing that it had a "compelling interest" and that restrictions on pre-viability abortions were limited to those that narrowly and precisely promoted real maternal health concerns. By contrast, Casey allows state and local laws that favor fetal rights and burden a woman's choice to have …