Respecting Legislators and Rejecting Baselines: Rebalancing Casey

Part I of this Note describes the background cases leading to the Supreme Court’s decision in Casey and the resulting undue burden standard. This Part also explains the limited circumstances in which the undue burden standard gives more definitive guidelines for judicial decisionmaking. Part II works through several federal district and appellate court cases to identify some of the underlying baseline presumptions and normative value judgments influencing judicial decisions in this area of the law. These baselines are often dispositive in determining whether a restriction on abortion is due or undue, cutting against the goodwill attempts by legislatures to make abortion as safe as possible while adhering to the Supreme Court’s constitutional protection of the procedure. Importantly, this Note does not impute upon judges any bad faith or malfeasance in relation to their adjudications in this area, but rather seeks to emphasize the inherent vagueness of the undue burden standard. Part III analyzes the impropriety of judicially created baselines and calls judges to account more clearly for their values on these matters when using the undue burden standard. As a threshold matter, this Note does not support the undue burden standard as stated in Casey. While the use of a balancing test in important and controversial constitutional matters may be appropriate at times, the underlying premise of the Casey undue burden standard is deeply flawed. While at once stating that women should be free to decide when life begins, the Court demands that for all states an unborn child is only a potential life, rather than an actual life, and establishes the balancing test using those unwavering parameters. States should have the authority to decide that a fetus, as an unquestionably distinct member of the human species, is a person whose full value needs to be balanced against the liberty interests of his or her mother. Such a standard would both allow state lawmakers who value unborn human life to make laws to properly defend it, while giving other states the freedom to deny the personhood and value of the unborn or instead identify situations where liberty interests are deemed more valuable than life