“Undue Burden” and the Discursive Limits of Reproductive Rights

Room in Jilotzingo, Mexico. Photo by Amy Krauss.

The closing of reproductive health clinics in Texas has gained international attention as singularly representative of contemporary abortion debates in the United States. While much could be written about the broader political culture surrounding the new laws, here I will focus on how the concept of “undue burden,” central to the debates, exposes the discursive limits of the US model of abortion rights since Roe v. Wade. I want to suggest that the concept is twofold: while derivative of the liberal logics of individualism and the right to privacy, “undue burden” also gestures towards the insufficiency of such paradigms. The opening generated in this double valence, I argue, provides new insights for how we might think about reproductive justice concerns often obscured by reproductive rights discourse.

The legal debate around Texas’s new abortion restrictions, formally known as House Bill 2, has focused on the “undue burden” standard adopted by the Supreme Court in Planned Parenthood v. Casey (1992). As many commentators have pointed out, the standard was conceived of as a protective measure against state attempts to limit women’s reproductive freedom. It was an early response to what has become one of the most powerful conservative strategies for limiting abortion rights, which in lieu of direct prohibition proliferates (positive) regulations at the state level. Along these lines, a key provision of the Texas law requires abortion providers to have admitting privileges to a hospital within thirty miles of the clinic. Applying the standard set by Casey, women’s rights defenders are put to the task of proving that such regulations, which effectively close a large number of clinics, generate major obstacles to access, and thus an “undue burden” for women who decide to terminate a pregnancy.

In a recent workshop on “Law and the Local,” coordinated by Jennifer Culbert and hosted by the Program for the Study of Women, Gender, and Sexuality at Johns Hopkins University, Lisa Pruitt delivered an interesting paper engaging this debate titled “Urbanormativity, Spatial Privilege, Judicial Blindspots and Abortion Law.” In the paper, Pruitt challenges the court’s notion of burden – which consists of quantifiable difficulties such as long distance travel, expenses, time, etc. – by considering how such “burdens” disproportionately affect women in rural situations. She argues that the court’s judgments about what counts as a burden reflect an unquestioned urban normativity, in which difficulties are imagined for a white, middle-class woman living in an urban area. Pushing open the idea of “undue burden” to include what she calls a “field of difference,” Pruitt challenges the court’s abstract notion of the individual with an image of the particular woman located in a rural context. While complicating the abstractness of the legal subject and calling for better attunement to women’s varied circumstances, Pruitt’s argument shies away from a broader critique of the framework of abortion law in relation to reproductive justice.

To what extent is feminist argumentation for abortion rights, both in the courts and in other public spaces, constrained by the framing of Roe v. Wade? The landmark Supreme Court decision establishes that a woman’s right to abortion must be protected as the limit of the state’s intervention into the private sphere. In the decades following the decision, the language of choice has come to dominate reproductive rights discourse in the United States, obscuring the inequalities of the consumer market that supposedly fills the “void” of state regulation. The undue burden standard sits awkwardly within this logic. On the one hand, it points to the existence of “public” barriers to “private” choice. On the other, by conceptualizing these barriers as the result of too much state regulation, it reiterates the original privacy/choice framework in which as long as the state does not intervene in a woman’s course of action she will retain her essential rights. The irony of “undue burden” is therefore not only its abstractness or lack of grip on real (i.e. local) women’s struggles, as a critic like Pruitt would have it, but also the way it reinscribes the image of a free individual with a pregiven agency that precedes all legal and social conditions.

By quantifying the barriers to an act assumed to be otherwise free, legal debates around the undue burden standard avoid (while obscurely indicating) a broader discussion about reproductive justice. Such a discussion would have to acknowledge women’s dependency on institutions and networks of support in the realization of the right to terminate a pregnancy. The language of “dependency” need not displace the unique moral authority that a woman has over the fate of her pregnancy, but does prompt thinking about the conditions necessary for something resembling personal agency, or “choice,” to emerge. Not simply burdens or barriers that a beneficent state might limit so that the right to abortion can be preserved within the right to privacy, varied material assemblages are necessary to generate and sustain women’s reproductive wellbeing and freedom. It is a difficult debate about these institutions, networks, dependencies, and conditions that the language of an “undue burden” seems to place on the tips of our tongues but (for the moment) perpetually defer.

Works Consulted

Caitlin Borgemann. “In Abortion Litigation, It’s the Facts that Matter.” Harvard Law Review 127 (2014).

Eva Feder Kittay. “When Caring is Just and Justice is Caring.” Public Culture 13.3 (2001).

Lisa Pruitt. “Toward a Feminist Theory of the Rural.” Utah Law Review No. 2 (2007).

Lisa Pruitt and Marta R. Vanegas. “Urbanormativity, Spatial Privilege, and Judicial Blind Spots in Abortion Law.” Berkeley Journal of Gender, Law, and Justice 30 (forthcoming, 2015).

Soran Reader. “Abortion, Killing and Maternal Moral Authority.” Hypatia 23.1 (2008).

Zachary Reyna. Response to Lisa Pruitt’s “Urbanormativity, Spatial Privilege, Judicial Blindspots and Abortion Law” (presented at “Law and the Local” at Johns Hopkins University, October 17, 2014).

Rickie Solinger. Beggars and Choosers. New York: Hill and Wang, 2001.

Amy Krauss is a Ph.D. Candidate in the Department of Anthropology at Johns Hopkins University. Her dissertation research concerns law and reproductive politics in Mexico.