Abortion Exceptionalism and Undue Burden Preemption

Table of ContentsI. Introduction 1048II. The Prevailing Approach 1050III. Undue Burden Preemption 1054A. Bodily Integrity 1056B. Equal Protection 1059C. Compelled Speech 1068IV. A Critique of Undue Burden Preemption 1083V. Conclusion 1086I. Introduction"Abortion exceptionalism" is a term that has been used to describe the tendency of legislatures and courts to subject abortion to unique, and uniquely burdensome, rules.2 This Article addresses a particular kind of abortion exceptionalism, which I call "undue burden preemption." Undue burden preemption is a trend in which some lower federal courts interpret the undue burden standard as essentially occupying the field of potential constitutional claims that may be brought against a given abortion restriction.3 Under undue burden preemption, courts addressing the constitutionality of abortion restrictions either refuse to analyze claims other than undue burden claims on the grounds that the undue burden standard displaces the other claims, or they interpret the undue burden standard as supplanting or altering the normal doctrine applied to the separate claims.4 Undue burden preemption is an aberration in constitutional adjudication. Normally, when a litigant alleges that a particular governmental action violates multiple constitutional rights, the courts analyze each alleged violation separately under the relevant doctrine.5The only area in which the United States Supreme Court has allowed a particular constitutional claim to "preempt" another separate claim is that of substantive due process. Under the "Graham doctrine," as it is known, when a litigant asserts a substantive due process claim, and where the Court finds that another more specific constitutional provision applies (for instance, the Fourth Amendment right against unreasonable searches and seizures), the Court analyzes the claim under the more specific provision to the exclusion of substantive due process.6 Undue burden preemption is the opposite of the Graham doctrine. Whereas the Graham doctrine prefers a more specific constitutional claim to a more general one, undue burden preemption rejects, or waters down, more specific constitutional claims (or, in the case of bodily integrity, an equally nonspecific constitutional claim) in favor of the notoriously nonspecific undue burden standard.7 Thus, under Graham, undue burden preemption is still jurisprudentially indefensible.This Article is organized into three parts. Part II describes the prevailing approach to adjudicating constitutional claims, along with the single established exception to this approach, the Graham doctrine. Part III explains the concept of undue burden preemption, illustrating its use in three doctrinal contexts: bodily integrity, equal protection, and free speech. Part IV critiques undue burden preemption as a misguided and dangerous expansion of Planned Parenthood of Southeastern Pennsylvania v. Casey's8 undue burden standard, one that turns the Graham doctrine on its head.II. The Prevailing ApproachThe Supreme Court has long recognized that a particular governmental act can implicate more than one constitutional right.9 When this is the case, claimants can assert multiple constitutional claims, and courts will consider each in turn, applying the relevant constitutional doctrine to each claim separately.10 The Court has expressly acknowledged this prevailing approach on more than one occasion. In United States v. James Daniel Good Real Property,n the Court addressed whether the government's seizure of the claimant's property without prior notice and a hearing violated procedural due process.12 The Government argued that it need only comply with the requirements of the Fourth Amendment.13 The Court agreed that the Fourth Amendment applied to the seizure but declared that this was not the "sole constitutional provision in question. …