Khiara Bridges, the Center for Reproductive Rights – Columbia Law School Fellow, presented her paper for our last colloquium of the semester entitled “Capturing the Judiciary: Carhart and the Undue Burden Standard.” Bridges explains the problematic assumptions and questionable logic behind the “undue burden” standard as promulgated by the U.S. Supreme Court in Carhart. While the overarching question remained whether the state legislation “unduly burdened” the abortion right as located by Roe v. Wade, the Court in Carhart found both that the state had a legitimate interest in “protecting the life of the fetus that may become a child,” and that the state had not unduly burdened the abortion right because the law “express[ed] respect for the dignity of human life.” Thus, the state’s action would have to pose a substantial obstacle to the abortion right for it to be considered unconstitutional.
Bridges questioned the specific meaning of “human life” as articulated, implicitly, by the Court, and delineated two definitions: a biological, protozaic “life,” or a “life” that “demands an emotional response” and “our profound respect,” and upon termination, “invokes grief, anguish, [and] sorrow.” The Court adheres to the latter understanding of “life.” Bridges calls this the morally weighted life, and she shows how this notion of “life” has been embedded by the Court into the standard, perverting the task it was supposed to do, and in a sense, stacking the deck for future courts who must make a decision using the undue burden standard.
Bridges advocates for a morally agnostic undue burden standard, one in which the moral status of the fetus is not known and not definitively answered for the woman contemplating abortion. The standard should not be committed to a particular view of the fetus; the state should foster a moral pluralism which allows for any number of answers to the question whether a fetus constitutes a “life.” Courts would then ask whether the state’s action refrains from imposing upon a woman the state’s conception of fetal life, or whether it clears a space for contemplation of the moral status of the fetus. She outlines a methodology for exercising the morally agnostic undue burden standard, looking at both the purpose and effect of the state’s regulation, and ultimately asking whether the legislation has succeeded in maintaining a morally pluralistic space.
Professor Ariela Dubler gave great feedback, emphasizing the strengths of the paper, especially in Bridges’ intuitive ability to anticipate counterarguments and grapple with the weakness of the Carhart standard, and asked both methodological and political/doctrinal questions, searching for ways that the morally agnostic undue burden standard could move the discussion away from a stark pro-choice vs. pro-life perspective. Bridges responded by clarifying that the morally agnostic undue burden standard should provide a liminal space between these two extremes, so long as the state refrains from giving one message (usually a pro-life message), but instead allows for a plurality of messages; one gets to this point through an understanding of the “undue burden” standard as morally agnostic, or neutral.
Bridges paper is extremely creative and provocative. It pushed me to consider whether morality has a place at all in the law, and if so, where it does and why. Courts are often confounded when confronted with a clash between rights and values – should values be taken into consideration, should they be given legitimacy, even if they directly contradict one another? Scholars and advocates alike have struggled to find a system or methodology that can lead courts to decisions that reconcile these clashes. Bridges has provided us with one insightful way to think about this within the context of reproductive rights and the undue burden standard.
Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.