The Constitution of Undue Burdens

by Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Co-Director of the Supreme Court Litigation Clinic, Stanford Law School

“Always it is by bridges that we live,” the poet Philip Larkin wrote. One of the problems with the way we have tried to build a more just constitutional law is our failure to draw lessons across constitutional subfields – to build constitutional bridges.

Several years ago, I published an article in the Indiana Law Journal called “Taking Politics Religiously: How Free Exercise and Establishment Clause Cases Illuminate the Law of Democracy.” It is an example of what I mean by building constitutional bridges: I used themes developed in the religion clause cases – like the “radical” idea that “[f]ree people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct,” that the Constitution should combat the creation of an outsider class and that it should prevent capture and exploitation of the machinery of government – to suggest how we ought to think about political party regulation, redistricting and campaign finance.

Now, I want to begin a conversation about two areas of law that might seem rather disconnected from one another: voting rights and reproductive justice. I often joke about that connection: politics, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology and often a need – as the Supreme Court put it in a redistricting case – to “pull” and “haul” rather indelicately at the very end. And of course, it often involves somebody getting screwed.

But it a more serious way, aspects of these two areas of law have followed a parallel doctrinal arc: one that may open us up to new ways of thinking about the Constitution and justice. Here, I want to focus on what have come to be called “first generation” voting rights issues – claims about the ability to register, to vote and to have a ballot counted (as opposed to the second-generation issues involved in redistricting) – and abortion rights.

Both voting rights and abortion rights lie at the core of self-determination. The joint opinion in Planned Parenthood v. Casey points to “[t]he ability of women to participate equally in the economic and social life of the Nation” that “has been facilitated by their ability to control their reproductive lives” and celebrates “the capacity of women to act in society.” That participation and capacity are political in a profound way. And just as control over their reproductive rights enables women to participate effectively in politics, so effective participation in politics is critical to ensuring women’s continued control over their reproductive lives. If people had forgotten that relationship, the election of Donald Trump and Mike Pence and the efforts to defund Planned Parenthood should remind them of it. So both areas of law are “stereoscopic,” by which I mean they lie at the intersection of concerns about individual rights and concerns about group equality.

The arcs of doctrinal development in the two areas have had three striking parallels. The first is that both were areas where the Burger Court adopted heightened judicial scrutiny because of the fundamentality of the rights involved. The second is that in both areas, the Rehnquist and Roberts Courts pulled back, adopting more deferential balancing tests that focused on whether the challenged law imposed an undue burden on exercise of the underlying right. They were also both areas where the right tried jujitsu maneuvers to coopt liberal or progressive values. In the abortion arena, the right advanced purportedly women-protective rationales for restrictive abortion laws. In the political arena, the right advanced arguments about electoral integrity, getting the Supreme Court to claim, without foundation, that (factually unfounded) fears of vote fraud would deter citizens from participating.

But in recent years, courts (including the Supreme Court) have started to recognize that undue burden tests must take account of how people actually live and the interaction of challenged abortion and voting restrictions with socioeconomic disparities. This new, more muscular understanding of undue burden allows us an opportunity, within the confines of current constitutional doctrine, to talk about how economic inequality and poverty undermine constitutional values. Perhaps these areas can become an opening wedge in litigation over the Constitution and constituting of opportunity.