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Change in `undue burden' standard could shift abortion law

WASHINGTON—The latest high-profile battle in the abortion wars may prove to be a sideshow to a monumental shift in abortion law that could take place this fall.

South Dakota legislators enacted a sweeping ban on abortion last month that will retest the strength of Roe v. Wade, the landmark 1973 Supreme Court decision that overturned all state laws banning or restricting abortion. Other states are threatening to follow suit as anti-abortion activists flex what they think is new muscle: two new Supreme Court justices who are thought to be less sympathetic to abortion rights.

Legal experts say the courts almost certainly will strike down South Dakota's ban in short order. But this fall, when the Supreme Court considers the federal ban on late-term abortions, the justices could make it easier for state legislators to pass stringent restrictions on abortion without much fear that the courts might overturn them.

The high court could force those who challenge abortion restrictions to prove that restrictive laws prevent a significant number of women from getting abortions. Currently, the courts bar restrictions if it's plausible that they could impose burdens on women seeking abortions.

Such a ruling would validate many abortion laws that can't now survive court scrutiny, and in some states it would render abortion all but inaccessible to many women.

All this could happen without the court even touching on the core debate over abortion rights.

"Abortion restrictions could be revolutionarily increased without in any way overturning Roe v. Wade," said David Garrow, a professor at Cambridge University whose book on abortion, "Liberty and Sexuality," is considered one of the definitive accounts of how modern abortion law developed. "South Dakota is kindergarten simplistic by comparison, something the courts will just dispose of easily, and no one will be affected. This other issue would have real impact on women's ability to get abortions in states where the legislature doesn't want them to."

Jay Sekulow, the chief counsel to the American Center for Law and Justice in Washington, said the court seems primed to make a change, especially on matters as controversial as late-term abortions. His organization is representing several congressmen who want to preserve the late-term abortion ban. If the court changes the way abortion laws can be challenged, he said, "Increasingly, you'd see that legitimate restrictions would be enforced. It wouldn't be an all-or-nothing proposition."

The shift could happen if the justices endorse the thinking in a lower-court opinion in a partial-birth abortion case, which contains a little-noticed argument that the "undue burden" standard that the Supreme Court has imposed on all abortion laws has gotten out of control.

Now, the courts can strike down newly passed state abortion laws if a challenger can show that any part of the new law could place an "undue burden" on a substantial number of women.

Take, for example, a law that includes a requirement that teens get parental consent before getting abortions. A challenger can get the whole law struck down by arguing that it would make it too difficult for a small number of teens—such as those who are abused or estranged from their parents—to get abortions.

This interpretation of the "undue burden" standard has made it easier for proponents of abortion rights to get the courts to invalidate scores of abortion laws without having to prove they were unconstitutional.

The nation's other laws generally must be challenged according to far more exacting standards that essentially require challengers to show that there's no possibility that the law could be constitutional.

The different standard for abortion laws has long been controversial at the Supreme Court, in lower courts and in legislatures.

Erwin Chemerinsky, a law professor and constitutional expert at Duke University, said the court had good reason to treat abortion laws differently.

Think of a teenager who's pregnant and hemorrhaging, or a pregnant woman in an abusive relationship, he said. "Should they have to go to court to prove they face an undue burden from regulations that require consent?" Chemerinsky asked. "The court is particularly concerned about small numbers of women being affected. They weren't concerned about proving the exact number to get a law enjoined."

A lower-court opinion in a late-term abortion case, however, has opened the door for the high court to reconsider its position.

Chief Judge John M. Walker Jr. of the 2nd Circuit Court of Appeals in New York addressed the different standards applied to abortion laws and explained why he thinks they should be changed.

"I can think of no other field of law that has been subject to such sweeping constitutionalization as the field of abortion," Walker wrote. The high court's decisions, he said, have made legislators "all but foreclosed from setting policy regulating the practice; instead, federal courts must give their constitutional blessing to nearly every increment of social regulation that touches upon abortion."

Abortion laws are struck down "based upon a speculative showing" that they might be unconstitutional, Walker said, and the justices have given unclear directions to lower courts in several abortion cases. He invited the high court to reconsider the matter.

That invitation may appeal to the high court's newest members, Chief Justice John G. Roberts and Justice Samuel Alito. Both are believed to be personally opposed to abortion, and both penned memos while working in the Reagan Justice Department urging legal strategies to curb abortions.

But both also have strong records as judges who respect established court precedents, and both suggested at their confirmation hearings that their votes would pose no immediate threat to established abortion laws.

Walker's opinion, however, offers a lawyerly, nonideological approach that could produce a fundamental change in abortion law without directly confronting established rulings. Indeed, Walker's misgivings about how the current scheme weakens legislators echo language that Roberts and Alito used in their Reagan-era memos.

Walker's opinion also may appeal to Justice Anthony Kennedy, who decried the different standards for abortion laws in a 2000 opinion on a Nebraska ban on late-term abortions.

Kennedy has voted to preserve core abortion rights but also has backed a broad array of state restrictions, including the Nebraska ban.

He lost that case because Justice Sandra Day O'Connor provided the winning vote to the opposite side. With O'Connor gone, Kennedy becomes the swing vote on the issue, and he could be attracted to a solution like Walker's, which retreats from the status quo without attacking core abortion rights.

Such a move also would dovetail nicely with a high court decision earlier this term that instructed a lower court to reconsider how to handle a challenge to a New Hampshire abortion restriction. The lower court had struck down the entire law using the lower standards that have applied to abortion laws.

"We had Kennedy on our side then, and I assume we have him now, but it's true that they have to find a way to get there, and this might be that way," said Sekulow of the American Center for Law and Justice. He'll file a brief urging the Supreme Court to uphold the federal late-term abortion ban, and he said that Walker's opinion could influence his efforts.

"That's one of the arguments we're looking closely at," he said.


(c) 2006, Knight Ridder/Tribune Information Services.

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