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

By Benshoof, Janet | The Nation, October 14, 1996 | Go to article overview
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Abortion Rights and Wrongs: Undue Burdens - the Rhetoric Is Pro-'Roe,' but the Reality Is Anti-Choice


Benshoof, Janet, The Nation


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 an abortion, so long as the burden is not "undue."

The evolution of the constitutional protection of childbearing decisions from strict scrutiny of any restrictions to the undue-burden test represents a political odyssey that began shortly after Roe and was accelerated by Presidents Reagan and Bush when they appointed Justices O'Connor, Kennedy, Scalia, Souter and Thomas. Also, beginning in 1983, the US. Solicitor Generals under Reagan and Bush routinely urged the Supreme Court, on behalf of the federal government, to overturn Roe. No other fundamental constitutional right in the history of this country has ever been so frontally attacked and so successfully undermined, and all in the course of two decades - the same two decades that sustained advances in other areas of women's rights.

Shortly after the Roe decision, state legislatures began passing laws in hopes of creating exceptions to it or of opening up areas of law that Roe did not directly address. Teenagers were the first successful target. In 1979 the Court endorsed state laws that required parental consent, as long as they were accompanied by a complicated system whereby minors could assert their privacy rights by requesting a hearing before a state judge on whether they were "mature" or an abortion was in their best interests (Bellotti v. Baird). The diminution of rights ignored the reality of teenagers' lives. Furthermore, state laws don't require parental involvement for childbearing, pregnancy testing or other sexually related teen health care. Teens can routinely make decisions such as whether to marry or give up a child for adoption, the abortion exception perpetuates the stereotype that a decision against motherhood violates nature and what a "good" and "natural" woman should do.

In 1980 the Hyde Amendment, which prohibited Medicaid from covering most abortions, was upheld by the Supreme Court by a 5-to-4 margin (Harris v. McRae). The Court abandoned the neutrality required in Roe, finding that, for poor women, government could promote childbearing over abortion, so long as it did so by manipulating women through public funding schemes, not criminal laws.

Justice O'Connor quickly fulfilled President Reagan's expectations. Dissenting in City of Akron v. Akron Center for Reproductive Health (1983), she called for a radical erosion of Roe and substitution of a novel "undue burden" standard for the strict scrutiny test. By 1989, after the arrival of Justices Kennedy and Scalia and the elevation of William Rehnquist to Chief Justice, there were no longer five votes to preserve reproductive choice as a fundamental constitutional right.

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