Abortion Exceptionalism and Undue Burden Preemption

41 Pages Posted: 12 Sep 2014

Date Written: April 1, 2014


This Article discusses the tendency of some lower federal courts to interpret the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey as essentially occupying the field of potential constitutional claims whenever abortion is involved. Thus, where litigants have alleged constitutional claims other than, or in addition to, undue burden violations, courts have either changed how they normally analyze these constitutional claims or they have even completely foreclosed the application of other doctrines on the grounds that the undue burden standard subsumes or displaces these claims. This Article illustrates this phenomenon in the context of three types of non-undue-burden claims that have been asserted against some abortion restrictions: bodily integrity, equal protection, and the right against compelled speech. Undue burden preemption, I argue, flies in the face of the Court’s recognition that “[c]ertain wrongs...can implicate more than one of the Constitution’s commands.” Where multiple constitutional violations are alleged, the Court’s normal approach is to examine each constitutional provision in turn. There is one well-established exception to this general rule, the “Graham doctrine.” This doctrine provides that, when a litigant asserts a substantive due process claim, and where the Court finds that another more specific constitutional provision applies, the Court analyzes the claim under the more specific provision to the exclusion of substantive due process. This Article argues that undue burden preemption, far from being justified by the Graham doctrine, turns that doctrine on its head.

Keywords: abortion, Planned Parenthood v. Casey, undue burden, graham doctrine, compelled speech

JEL Classification: K10, I18

Suggested Citation

Borgmann, Caitlin E., Abortion Exceptionalism and Undue Burden Preemption (April 1, 2014). Washington and Lee Law Review, Vol. 71, p. 1047, 2014, Available at SSRN: https://ssrn.com/abstract=2494528

Caitlin E. Borgmann (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States
718-340-4503 (Phone)

HOME PAGE: http://www.law.cuny.edu/faculty/directory/borgmann.html

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