"Undue Burden" in Dobbs: A Revolution Disguised as a Tweak?

Sherif Girgis was my colleague and she passed these thoughts along. DobbsI have his permission to post the following:

The Supreme Court will uphold Mississippi’s ban on abortions for 15 weeks, but not fully reverse it. Roe CaseyHow can we restore rational-basis oversight to abortion laws?  Scholars like John McGinnis Mark TushnetHave wondered, without endorsement, if it might be possible for the Court to claim such a thing by applying CaseyThe Court’s ruling against abortion “undue burdens”.  It is expected that this appeal will be made to the Court for a restrained and modest resolution. Dobbs.

This approach, however, would completely misrepresent the truth. Casey “undue burden” is the same thing.  This phrase was shorthand for “constructive prohibition.”  This was any regulation that is incidental to the abortion procedure and does not prevent access to abortion at certain gestational stages as would a ban. It should therefore be treated as such.  Since DobbsThis includes an ActualBan, “undue weight” is inapplicable here.  The concept’s meaning would change if it were to be applied in this context.  Actually, Dobbs It would have to be replaced CaseyThe doctrine is based on something completely new and has no support from existing legal sources.  To be valid, the new abortion right will need a constitutional justification.  As explained above, this new justification would need to support a minimum-core abortion rights that are (unlikely). Roe Casey) It was impossible to allow bans in future cases based on evidence of fetal development or new judgements of fetal worth.  Reasoning is essential. AnyIt would be difficult to continue working on new ideas without relying on existing sources. RoeAs Justices may wish.  This would require them to not only contradict but also Roe CaseyHowever, they have to make their own arguments for a right in Dobbs.  Meanwhile, DobbsThe new test is markedly more vague than the previous one. CaseyCourts will be more scattered by the’s.  This would allow states to continue the litigation, since 95% of all abortions are performed before 15.

My reading of Casey The proposed solution is correct, therefore DobbsAnalysing would prove more unfounded than any abortion opinion after Blackmun’s birth RoeIt is easier than using the CaseyPlurality is hard to roll back.

Because the Court of Appeal is currently more formalist than that (or Any otherThis proposal would be the exact opposite of what virtues are meant to appeal to the Court. I believe the Court will do all or nothing. Dobbs.

1. Understanding Casey.  They can minimize these negative effects by resting a partial ruling on some precedent.  This would allow them to stop inventing new rules and defend it themselves.  This is why the proposal to apply Casey“The rule against undue obligations on abortion.”  However, the proposal is misunderstood. Casey That phrase is what it means.

Some critics disagree CaseyThe “undue burden” test could mean whatever you wish it to.  This would be true even if “undue” was used in CaseyThis could be defined as “unconstitutionally restrictive” (or unconstitutional).  For then the “undue burden” test would simply be telling judges to determine if abortion laws are unconstitutional—without telling them How to.  However, that is not the meaning of “undue burden”. It has a specific and concrete meaning as explained below.  Mississippi’s ban on “undue”, however vague, is not relevant to it. It is exempted by another very sharp rule. CaseyKeeping it from Roe.  (By contrast, a Dobbs This “middleground” is not for you. CaseyAnd have not sharp edges.)

For more information, see: Roe‘s holdings:

  1. AllAbortion regulations are subject to strict scrutiny and require compelling reasons.
  2. In trimester 2, the women are more concerned about their safety. 
  3. After viability, the only way to protect fetal life is through survival.

Three rules were derived from these premises:

  1. Trimester-one abortion laws are not applicable. 
  2. Only incidental regulations—for women’s safety—in trimester two. 
  3. There are no prohibitions, which can only be justified as protecting fetal lives, until viability.

Casey Reaffirmed the premise and therefore result C (making). CaseyThere is a middle ground somewhere between partial or full reverse of Roe).

CaseyI rejected premise A’s insistent on thorough scrutiny All abortion laws.  There are many options. Casey Drawing analogies with voting rights, it is important to note that not all laws “making it more difficult to exercise a right” need to be included in bans.  With abortion, some incidental regulations—e.g., credentialing requirements for providers—might not curb access by much.  So Casey It was necessary to be able to identify which laws “touching on” abortion required a justification. This is similar to prohibitions.  These laws would have to be “substantial obstacles” that prevent abortions from taking place at any given time.[ing]They “as sure as” would prohibitions.  Und das Label CaseyThey were given the phrase “undue burdens.”  The phrase thus refers to constructive prohibitions:  incidental regulations similar—in their impact on abortion at some stage—to actual prohibitions.

Finally, consider why Casey devised this test:  to implement the rationale for abortion rights that CaseyIt is repeatedly used as RoeThe “central holding” is premise C.  This reasoning is about when the fetus attains enough moral standing to justify abortion bans.  This is what it means. Casey put it:  “Before [the fetus attains]Viability means that the State does not have the resources to prohibit or impose a significant obstacle to abortion.

CaseyThese are the rules that resulted:  

  • They are not prohibited until viability because they require a compelling reason.
  • It does not contain any additional regulations The amountTo prohibitions (“undue weights”), until viability (same cause). 
  • Laws that don’t actually ban or encourage pre-viability abortions are currently under review by rational-basis.  This is the only thing that has changed. Roe.)

This is why DobbsCan’t capitalize on the vagueness and “undue”  True, it’s vague which regulations are harsh enough to be undue—i.e., constructive prohibitions.  But it isn’t vague what rule applies to laws held to be constructive prohibitions:  forbidden until viability (long after 15 weeks).  The undue burden concept is not required for analysing actual bans. It only tells us what regulations we should treat as bans.  They are All forbidden until viability.

To sum up:  Casey‘s Try it! We wouldhave been strong enough to use in Dobbs If “undue burden,” conveyed only the same information as “unconstitutional,”  This is the “undue burden” argument. Conclusion sense of “undue.”  In fact, CaseyUsed “undueness” as an example of a premise—as a way of capturing some independent feature of abortion laws that would serve as an input for courts’ analysis of Whichever These laws do not have a conclusory or constitutional meaning.

The conclusory sense: EachConstitutional rights cases are about what laws are “undue.”  We could also say Janusdeferred to the First Amendment. HellerThe Second.  In this sense, however, “undue”, while it isn’t performing analytic works; substantive doctrines are.  While in Casey“Undue” clearly meant input.  One thing is certain: Casey declared two things invalid but called only one “undue”:  pre-viability prohibitions pre-viability, and no burden.  It is also important to note that CaseyNot at all, but until viability, undue burdens were rejected. This proves “undue,” not another term for “unconstitutional,” is not true.  What Casey Was meant by “undue weights”. Positive bansThey aren’t in dispute. Dobbs.  So even if Dobbs were to Please sayIf it were testing for “undue weights”, its analysis will be based on something else.  Simply using “undue,” would not give rise to anything. DobbsWith overlap Casey beyond what’s common to all constitutional rights cases:  a search for what’s undue in the conclusory sense (unconstitutional).

2. Casey Dobbs.  To maintain a ban of 15 weeks for the imposition of an “undue burden”, it would take a lot more rewriting.  The Court first would need to delete CaseyIt is the “no restrictions before viability rule.”  It is important to remember that this rule flows from the exact same ruling about fetal worth and the undue burden rule.  The Court will then have to remove a portion. of the “no undue burdens until viability” rule itself—the “until viability” part.  The Court would then declare that it is preserving a “no unde burdens” rule.  Then the Court would say it was upholding the 15-week ban without endorsing or rejecting this “no undue burdens” rule since it wouldn’t have to:  Either way, the ban would stand because it leaves ample time to abort (up to the 15th week).

But even that last step would still raze any remaining stump. Casey.  The “middle ground”, as it was proposed, would be void. Casey.  Although stealing the trademark phrase “undue burden” DobbsWould intend to use the expression “something with a” Absolutely novel: (a. meaning; (b. doctrinal purpose and (c. underlying constitutional justification or reason for abortion rights)..

ErstAs you can see, under is the result of our analysis. CaseyIt is important to avoid “undue hardships”. Not It is about giving women time to choose whether to have an abortion before the bans take effect.  “Undueness” instead is determined by the law’s effects on abortion access.Point in pregnancy.  Unnecessarily burdensome laws make it difficult to abort at all Stage.  Und da “undue weight” is just It means A rule against undue weights cannot allow for actual prohibitions. Dobbs.  If constructive bans pose high obstacles, then real bans will be brick walls.

SecondThis would make the whole thing unsound. FunktionFor more information on the Undue-burden Rule, click here Dobbs It should be deleted from the rule any reference to a specific time period.  The rule is there to inform us when “undue burdens” are not constitutional.

TroisièmeThis time-related function is not served by a rule. Dobbs Could not be implemented Casey‘s (and Roe‘s) “central” ArgumentationFor constitutional abortion rights.  That reasoning again is based on a key Moment in fetal development.  The State does not have an interest in the development of fetal health.

Concretely, then, “if” DobbsMississippi’s prohibition against imposing any “undue burden” was upheld. The phrase will no longer be “Regulation with the same impact and a ban,” “Actual ban that applies too quickly,”  The new concept is doctrinal Funktion It would be great if you could tell us the time it takes for a woman to find out she is pregnant, and then face an abortion ban.  This is the constitutional Argumentation would thus have to be, not that the woman’s interest trumps the fetus’s until the fetus is viable, but a rationale less sensitive to changing judgments of fetal worth at different stages:  that one way or another, the Due Process Clause—at a minimum—entitles a pregnant woman to Someequal opportunity to have an abortion.  A simple opinion recalculating when fetal life is superior to women’s autonomy seems unlikely. Such calculations were also rejected by the Chief Last year(An incoherent weighting of incommensurables.

Mississippi may have made a suggestion, but it is not confirmed. Dobbs The “large fraction” test cannot be relied upon. Caseywas upheld by the courts in subsequent cases. It is not intended to affect “large fractions” of abortion-seeking women.  This test does not determine if women have access to pre-viability abortions.  It determines how many women have to be able to access pre-viability abortion without undue burdening them before it can be deemed invalid. FaciallyIt is not as-applied.  And we already know how large the unlawful fraction is for actual bans like Mississippi’s:  100% of their pre-viability applications are invalid under Casey.

3. Upshots.  Accept a test that rhymes only with CaseyUnintended consequences could result from’s.

The first is a lack of a toehold. Casey (or OthersLegal Sources), it would appear that the Court is arbitrary or legislative in addressing a high-charged issue.

Second, DobbsThe New Rule This would introduce tow a new Constitutional rationale to an abortion right that was staked on Justices’ authority. It makes it more difficult for them later to scale back.  The Roberts Court is not averse to extending precedents in parts.Situations it cannot controlIt was a mistake to say “Yes,” and then later scrap it.  However, it is quite different to refuse a doctrine of a preceding precedent regarding a legal matter (Casey/RoeThe’s are on Abortion Bans), so it is necessary to justify a brand new replacement DobbsBefore you come back to reverse the replacement,  (Imagine what it would look like if Casey plurality—after replacing Roe‘s “no first-trimester regulations” rule with a “no pre-viability undue burdens” rule—later declared even those undue burdens lawful after all.)

The third reason is that it would be very difficult to reduce your efforts. Dobbs—unlike Roe/Casey—would’ve affirmed an absolute minimum right that isn’t pegged to evolving judgments about the interest in fetal life at different stages.  There would not be any room for later amendments to bans more broad based upon greater deference to state decisions on this interest, or new developments in fetal development.

Fourth: Not Like Casey, This DobbsIt would not use a “bright-line” rule in determining bans, or any other matter.  The proposal would use the principle of “undueness” as a determining factor Both When a regulation acts like a ban When a ban or constructive ban is implemented too soon.  The resulting test:  “No unduly early ‘undue burdens’ on access.”  The second layer of vagueness would invite serial litigation of how much time is constitutionally required—15 weeks? 12? 10? 8? 6?  6? LawNow, the Sixth Circuit conservative has made severable provision banning all forms of abortion at each point. 

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 This article explains the meaning of the concept “undue weight”, its doctrinal function and the reasoning behind the resulting right. RoeIt was reaffirmed in CaseyThey are useless for a lukewarm person Dobbs.  Even if Justices borrowed Casey‘s Signatory phrase: “Undue burden”, they must give it a job and develop a rationale to justify the abortion. This reasoning would contradict precedent, not find support in other sources and confuse courts. It will also be a little more important than states’ interests in the welfare of fetal life.  DobbsIt would be even more slippery than CaseyIt is more difficult to get out of your own head and less grounded.

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