Writing in The Catholic Thing, Prof. Hadley Arkes discusses the craft of judging in light of a 2016 Supreme Court case on the regulation of abortion clinics in Texas.
“Women near Corpus Christi would have to travel then about 235 miles to San Antonio in order to get an abortion. In Texas, that doesn’t strike people as a gargantuan drive, and yet that becomes the ground of the appeal: In making people travel further in this way, is the law imposing an ‘undue burden’ on the freedom of a woman to order an abortion?
“The phrase ‘undue burden’ came from the case of Planned Parenthood v. Casey (1992). But the Supreme Court in that case insisted that it wasn’t an ‘undue burden’ if the law simply made that right to abortion more difficult to exercise. Courts in Texas had accepted a distance of 150 miles as less than an ‘undue burden.’ And it was pointed out that Casey ‘permitted even farther distances than 150 miles because it involved a 24–hour waiting period’ and some women were required to drive for more than three hours.
“But if we could step back for a moment, what would this discussion sound like if the question were connected here to the issue of moral substance: Would it be an ‘undue burden,’ or an unwarranted hardship, if a person were required to travel 250 miles and more than three hours before he or she was given a license to destroy an innocent human life?”
“(N)othing in the notion of ‘a large fraction’ or ‘150 miles’ furnishes any moral or juridical principle. Why are these judges, accomplished men and women, expending their genius in pondering matters of this kind? They agonize over these phrases precisely because they are working under the positive law springing from Roe v. Wade.”
Read the whole piece, “Judges and Their Occupational Hazards.”