This is Political Sphere. I felt the need to add to the discussion the recent abortion decisions in Alabama and Mississippi that Mrs. Spherical Model discussed last Thursday. The one that I want to focus on, though, is the Mississippi case. In Mississippi, the court decided that the legislation that had recently passed was unconstitutional because it would result in the closure of the state’s only abortion clinic. This is generally a very reasonable basis in the law—but not in this case.
Generally, if a state is responsible for ensuring a right, they must ensure that right may be obtained within the borders of the state. The best example for this legal basis is the right to legal counsel. Each state is required to ensure that residents of that state have access to legal counsel. This requirement means that the state must provide a lawyer to represent an accused individual when that individual is incapable of paying for legal counsel on their own. The right to counsel has been used to prevent a state from refusing to allow a lawyer to practice in the state if the lawyer did not have an office within the state.
However, in Alabama and Mississippi, the court misunderstands the right being asserted. Planned Parenthood and other abortion providers assert that the right the court is required to protect is the right to an abortion within the state. The right that is actually being protected, according to the “umbras and penumbras” discovered by The Supreme Court, is the right to privacy. The right, specifically, is that reproductive choices made between men, women, and doctors are generally not subject to government interference beyond generally applicable restrictions on the medical industry.
The only exception to this right of privacy is what leads abortion proponents to get confused. The Supreme Court in Roe v. Wade did note that the State had a long-recognized interest in the life of its citizens, including persons-in-being (or unborn children/fetuses). Thus, it became an issue of where is The State’s interest in the person-in-being great enough to eliminate the continued right of privacy in reproductive decisions.
Clarifying the right The Supreme Court has actually recognized also clarifies the claim that the right is to be ensured by the state. If the state were held positively responsible to ensure abortion services were available within that state, that requirement would defeat the clarified right. Instead of being required to limit the restrictions the state may put on private reproductive choices, the state would be required to actively insert itself in the reproductive decisions made.
The undue burden rule
Recognizing that the right found by The Supreme Court is actually a right to privacy in making reproductive choices, The Supreme Court requires that the correct test to apply to legislation affecting reproductive choices is the rational basis undue burden test. This test requires first that some rational basis support the legislation imposed by the government. If a rational basis exists, step two of the test asks whether the legislation creates an undue burden on the person making the reproductive decisions. This second step is where the court in the Alabama and Mississippi cases err.
The first step requires that a rational basis exist for the enacted legislation. In other words, does any logical reason exist that the legislature may have used in deciding to enact the legislation. This does not require that the legislature used any rational basis in enacting the statute. As far as the court is concerned, the legislation may have been enacted because the tea leaves in the cup of the speaker of the house encouraged the Congress to vote yes on all votes scheduled that day. If the court is able to find any logical reason the legislature may have used, the actual reason a statute was enacted is irrelevant. Also irrelevant is whether the legislation actually achieves the rational basis that might have been used to enact the legislation. The Court is not allowed to impose its personal beliefs on elected officials.
The second step allows the court to consider whether the statute results in an undue burden. While this is an outcome based test, the court misapplies the burden onto the state. In Mississippi, the only abortion facility has announced its intention to shut down in response to the new legislation. In Alabama, three of the five abortion facilities announced intentions to shut down in response to the new legislation. The courts in these cases decided that the announced closings imposed an undue burden on people making reproductive decisions within that state.
As I discussed in the last section, however, the state cannot and should not take an affirmative role in assuring that abortion facilities remain open. All the state is required to do under this second step is ensure that the legislation is not unrealistic for the abortion facilities to follow. However, the burden falls to the party claiming that the statute imposes the undue burden to prove that the statute imposes a restriction that the abortion facility cannot comply with.
In other situations, inability to abide by the law is a defense, but the burden is on the party asserting the defense to show that it cannot abide. It is not enough that a party chooses not to abide by the law that imposes some restriction. If that were the case, then The State could not even require sterilization of instruments if abortion clinics chose not to abide by that restriction. Therefore, the test requires that opponents of the statute show that the restrictions are impossible to abide by, or that the restrictions create such an imposition that it is completely unreasonable to expect that the opponent can abide by the statute.
In conclusion, the courts misunderstand the right being alleged in the cases. There is no right to abortion, just a right to privacy in making reproductive choices. This misunderstanding results in the courts then misapplying the rational basis undue burden test as The Supreme Court requires. Using the correct test, it becomes clear that the statutes do not unconstitutionally interfere with the right recognized by The Supreme Court.