“Undue Burdens and Potential Opportunities in Voting Rights and Abortion Law”

Pam Karlan has posted this draft on SSRN (forthcoming, Indiana Law Journal). Here is the abstract:

This essay explores two areas of law that at first blush might seem relatively disconnected from one another: voting rights and reproductive justice.

Many years ago, I joked about one aspect of that connection: “Redistricting, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology, and often a need to ‘pull [and] haul’ rather indelicately at the very end. And of course, it often involves somebody getting screwed.” But the connection between them is actually more profound — and potentially more promising.

First, a citizen’s right to vote and a woman’s right to decide whether to terminate a pregnancy share a distinctive structure: they are rights-creating and stereoscopic. That is, they enable the exercise of other rights and lie at the intersection of the liberty and equality values expressed by the Fourteenth Amendment.

Second, these rights have undergone a similar doctrinal evolution over the last half-century, as the Supreme Court first ratcheted up and then relaxed the level of judicial scrutiny. Both are now subject to an undue burden standard. While that doctrinal retrenchment has rightly been subject to withering criticism, in recent cases courts have begun to analyze burdens in ways that take into account the interaction between the challenged restrictions and socioeconomic disadvantage.

The emerging, more muscular understanding of undue burden allows us an opportunity, within the confines of current constitutional doctrine, to talk about how economic inequality and poverty undermine constitutional values of self-determination, liberty, and equality.

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