Document Type

Article

Publication Date

2002

Abstract

Scholarship that tells us what is really at stake in the lives of people affected makes the law honest and responsive. Whether or not it directly shapes doctrine, this type of scholarship can capture imagination and influence judgment. The Michigan Law Review has published some of the best of this work: Yale Kamisar's articles on coerced confessions, Terry Sandalow's essay on affirmative action, Joe Sax and Phillip Hiestand's description of the emotional impact of living in a slum, Martha Chamallas and Linda Kerber's demonstration of how injuries that uniquely befall women have been dismissed as merely emotional wrongs, and, most relevant to my project, Don Regan's article on abortion and Martha Mahoney's on separation assault. Civil rights doctrine is thin and vulnerable when it develops without any genuine effort to understand and articulate the significance of the right claimed to the protected class. The Supreme Court's abortion law is an important example of this phenomenon. A woman's right to choose to have an abortion free from state coercion was defined, developed, and constricted without any sustained effort on the part of the Court to articulate why such a right actually is important to women. The right has survived almost three decades but is now barely alive, apparently settled into a minimal existence, protected only against the most overwhelming of state incursions. In this Essay, I explore the implications of this failure. Part I discusses the compromise reached by the Supreme Court a decade ago in its last major abortion case, Planned Parenthood v. Casey. Part II argues that the undue burden test adopted in Casey protects women only against total prohibitions on their right to choose to have a safe abortion. Like traditional rules regarding rape, it requires women to resist to the utmost in order to preserve their liberty. Less serious burdens are classified as mere inconveniences. Part III points to two fine articles published in the Michigan Law Review as examples of scholarship informed by attention to women's lives that should have expanded the Court's perspective. Part IV contends that the choice to have an abortion is, for some women, both an unavoidable and an ethical decision. It argues that more attention to what abortion means to women ought to lead all the Justices to see the question as a true moral conflict, rather than a choice between morality on one side and convenience or amorality on the other.