That’s the title of a recent comment by Jeffrey Toobin in the New Yorker. See http://www.newyorker.com/news/daily-comment/disappearing-undue-burden-standard-abortion-rights
Toobin describes the “undue burden” standard as the Justice O’Connor’s “most important triumph during her long and consequential tenure on the U.S. Supreme Court” and laments the prospect of the test’s impending demise. Toobin wrongly states that O’Connor’s views roughly mirrored those of most Americans. As Clarke Forsythe pointed out in his book on Roe v. Wade: “What makes abortion uniquely controversial is that the Justices have sided with a small sect–7 percent of Americans–who support abortion for any reason at any time. And the Justices have for forty years prevented the 60-70 percent of Americans in the middle from deciding differently. The conflict between public opinion and the Supreme Court’s nationwide policy is one key reason why Roe is uniquely controversial.”
Toobin focuses on the increasing number of state restrictions on abortion and notes, in particular, the Texas law requiring that abortions be performed in ambulatory surgical centers that was recently considered by the United States Court of Appeals for the Fifth Circuit. See http://www.texasrighttolife.com/a/1342/Fifth-Circuit-Court-hears-arguments-on-injunction-delaying-Texas-ProLife-law#.VBnu_Njjjcs.
Toobin speculates about how the U.S Supreme Court will treat this law and ends with this question: “O’Connor has been gone from the Supreme Court for nearly a decade. The question, now, is whether her great achievement will soon be gone, too.”
We can only hope.