How does the court make those decisions anyway, and how might the level of protection some rights have rise and fall?
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Dissenting in Planned Parenthood v. Casey, Chief Justice William Rehnquist claimed that the controlling joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter rejected two key features of Roe v. Wade: abortion was no longer a “fundamental right,” and abortion restrictions were no longer subject to strict scrutiny, the late Chief Justice said. Following his lead, some scholars and lower court judges reason that the Casey joint opinion’s undue burden standard – which was subsequently employed by a majority of the Supreme Court – effectively demotes abortion from the status of fundamental right to something less.
Just how much less is illustrated by the opinion of the U.S. Court of Appeals for the Fifth Circuit now under review by the Supreme Court in Whole Woman’s Health v. Cole. In the view of the Fifth Circuit, when the Supreme Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart, it equated the undue-burden test with rational-basis scrutiny, the most permissive standard of review known to constitutional law.
That conclusion is wrong. The Casey dissenters thought that abortion regulations should be subject only to rational-basis scrutiny. A majority of the Court rejected that view. Although Casey and other post-Casey cases contain some confusing language, taken as a whole, these cases are best read as preserving the status of abortion as a fundamental right.
Seeing how Casey leaves heightened scrutiny intact for many abortion restrictions in turn sheds light on an otherwise mysterious aspect of that ruling’s articulation of the undue-burden test – the notion that a law can be an undue burden if it has “thepurpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” (emphasis added). The Court has not yet had occasion to apply the purpose prong of Casey, but this case presents the issue squarely.
The rise and fall of the language of fundamental rights
