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To the surprise of many and the dismay of some, the U.S. Supreme Court took it upon itself last term to proclaim a national compromise on the question of abortion. The Court's announced truce, an elaboration on Justice O'Connor's "undue burden" idea, is pragmatic in design but unlikely to prove stable in practice. The three justices who spoke for the Court disparaged Roe with reluctant praise, then upheld its outer shell on the ground that social expectations and the need to sustain the appearance of the rule of law made it impolitic to do otherwise. This awkward doctrinal invention seems unlikely to yield a lasting peace. However artful as political brokerage, it is unpersuasive as principled jurisprudence. Its explicitly political calculus invites skepticism about its authors' commitment to principled method even as it purports to preserve public regard for judicial legitimacy. Moreover, there is an unexplained "disconnect" between the opinion's avowed preservation of Roe's "essential holding" and its abandonment of Roe's commitment to reproductive freedom as a compelling interest.

Should the "undue burden" approach nevertheless survive for a time, its "standardless" character will encourage continuing cease-fire violations as abortion opponents probe its ill-marked limits. Its survival, though, is as uncertain as its substantive content. Not only were its three proponents unable to win over a majority; four justices proclaimed their commitment to frankly overruling Roe. The election of Bill Clinton is no guarantee that a fifth vote will not emerge in the future.

Publication Citation

20 L. Med. & Health Care 392-402 (1992)