Potential Life in the Doctrine

In their article, Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin seek to shore up the doctrinal basis for a woman’s constitutional right to end her pregnancy. While Chemerinsky and Goodwin are partly concerned about the status of abortion rights in the United States because of President Donald Trump’s promise prior to taking office to appoint Justices to the Supreme Court who will overturn Roe v. Wade, they also maintain that some of the threat to abortion rights arises from an uncomfortable tension in the doctrine that recognizes states’ interest in potential life. I agree with Chemerinsky and Goodwin that the undue burden standard, especially how it has been applied, under-protects the constitutional right to an abortion. But the existing doctrine still provides more limits on the government’s ability to enact abortion restrictions than Chemerinsky and Goodwin suggest, even where the government purports to protect potential life. The threat to abortion rights is real, but it is not just from the undue burden standard: it is from politicians who, with the help of lawyers, will continue to try and legislate abortion out of existence and drain the legal standards governing abortion of any meaning. After outlining the undue burden standard, Part I explains why the state’s interest in potential life poses a challenge to the undue burden standard. Part II outlines how the undue burden standard nonetheless limits states’ ability to restrict abortion even when they purport to vindicate an interest in potential life. Part III suggests that the challenge to abortion rights arises more from states’ willingness to baldly challenge the legal standard governing abortion restrictions than from the legal standard itself