A Right in Theory but Not in Practice: Voter Discrimination and Trap Laws as Barriers to Exercising a Constitutional Right

Constitutional rights are of little value if they can be indirectly denied.1 In the United States, a woman has a constitutional right to an abortion - a right that derives from the Fourteenth Amendment and guarantees that a state may not place an undue burden in the path of a woman seeking an abortion prior to viability.2 In the past decade, states across the U.S. have launched an all-out war on abortion rights, chipping away at the standards set forth in Roe v. Wade3 and Planned Parenthood of Southeastern Pennsylvania v. Casey4 with creative and deliberate tactics. One such tactic is to make it nearly impossible, if not impossible, to physically obtain an abortion. With the goal of making states "abortion free,"5 states have implemented Targeted Regulation of Abortion Providers (TRAP) laws to effectively shut down abortion clinics.6 Despite the existence of the constitutional right to an abortion, TRAP laws make that right impossible to exercise and are based on arbitrary and malicious intentions.7The notion that a right that is impossible to exercise is a meaningless one was proffered in the string of seminal Supreme Court cases dismantling voter discrimination laws used against African-Americans8 during the Reconstruction and Jim Crow eras.9 Though African-American males were granted the right to vote in 1870, backdoor means of keeping black voters out were used to prevent them from exercising this right. Grandfather clauses, literacy tests, and white primaries were only some of the tactics used to diminish the strength of the black electorate.This paper argues that had abortion been examined as a fundamental right under the voting rights lens prior to Casey, Supreme Court jurisprudence would have required that TRAP laws be invalidated. Part I of this paper discusses voter discrimination and TRAP law jurisprudence. Part II posits that had the Supreme Court examined abortion rights after Roe under the voter discrimination frame, TRAP laws would require invalidation because they are based on arbitrariness and animus. Part II also argues that under the analysis used by courts in voter discrimination cases, discriminatory restrictions that prevent women from exercising their right to an abortion are accordingly unconstitutional. Part III offers policy recommendations regarding future treatment of the federal right to abortion. Finally, Part IV concludes that the abortion-rights advocates should not limit themselvesto defending abortion rights through the right to privacy precedent, but should seek out new lenses through which to legally challenge antiabortion restrictions.I. BACKGROUNDa. The Right to VoteThe right to vote is not explicitly granted by the Constitution.10 Individuals have no federal constitutional right to vote for electors for the President unless and until the state legislature chooses a statewide system for doing so.11 The Constitution requires that members of the U.S. House of Representatives and Senate are to be elected by the people12 and that states will be penalized for abridging the voting rights of male citizens who are at least twenty-one years of age.13 Aside from this, the Constitution merely prohibits the disenfranchisement of certain populations who have faced a history of political or social discrimination. For example, the Nineteenth Amendment prohibits voting discrimination based on sex, the Twenty-fourth Amendment prohibits voting discrimination based on wealth, and the Twenty-sixth Amendment prohibits voting discrimination against those eighteen years of age or older.14States have broad discretion to regulate their local electoral process through legislation and executive action,15 so long as those regulations do not violate federal constitutional guarantees.16 This right is conferred by the Elections Clause of the Constitution, which grants the states the explicit power to regulate the times, places, and manner of holding elections.17 Within limits, states are free to restrict who votes and how. …