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Abortion Constitutionality

“The Disappearing ‘Undue Burden’ Standard for Abortion Rights”

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.

Richard M.

Richard Myers

Richard S. Myers, the Vice-President of UFL, is Professor of Law at Ave Maria School of Law, where he teaches Antitrust, Civil Procedure, Conflict of Laws, Constitutional Law, and Religious Freedom. He is a Phi Beta Kappa graduate of Kenyon College and earned his law degree at Notre Dame, where he won the law school's highest academic prize. He began his legal career by clerking for Judge John F. Kilkenny of the U.S. Court of Appeals for the Ninth Circuit. Professor Myers also worked for Jones, Day, Reavis & Pogue in Washington, D.C. He taught at Case Western Reserve University School of Law and the University of Detroit Mercy School of Law before joining the Ave Maria faculty. He is a co-editor of St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (Catholic University of American Press, 2004) and a co-editor of Encyclopedia of Catholic Social Thought, Social Science, and Social Policy (Scarecrow Press, 2007). He has also published extensively on constitutional law in law reviews and also testified before Congressional and state legislative hearings on life issues. Married to Mollie Murphy, who is also on the faculty at Ave Maria School of Law, they are the proud parents of six children - Michael, Patrick, Clare, Kathleen, Matthew, and Andrew. http://www.avemarialaw.edu/index.cfm?event=faculty.bio&pid=11705E7D4E0111010366