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Document Type

Symposium

Publication Date

Winter 2018

Publication Citation

93 Indiana Law Journal 139 (2018)

Abstract

One of the problems with the way we have tried to build a more just constitutional law is our failure to see, and then to make the most of, doctrinal connections across constitutional subfields—that is, to build constitutional bridges. This Essay seeks to build one such bridge between two areas of legal doctrine that 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 rights that lie at the intersection of the liberty and equality values expressed by the Fourteenth Amendment. Second, these two rights have been subject to 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. That doctrinal retrenchment has, rightly, been subject to withering criticism. Finally, in several recent cases, courts have begun to analyze burdens on voting rights and access to abortion in ways that take account of how people actually live and that account for the interaction between the challenged restrictions and socioeconomic disadvantage. This emerging, more muscular understanding of undue burden allows us an opportunity, within the confines of current constitutional doc-trine, to talk about how economic inequality and poverty undermine constitutional values of self-determination, liberty, and equality. Perhaps these undue burden cases can become an opening wedge in litigation over the Constitution and what equal opportunity should mean more generally.

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.

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