Wednesday, January 21, 2009

Recent Article by UW Law Faculty Member on Justice O'Connor

Professor Stewart Jay recently published an article tracing Justice O'Connor's opinion's on abortion rights throughout her career. Ideologue to Pragmatist?: Sandra Day O'Connor's Views on Abortion Rights, 39 Ariz. St. L.J. 777 (2007). Westlaw

Jay states that O'Connor was neither an ideologue nor a pragmatist when it came to her decisions on abortion. Rather, she believed that the question of abortion belonged either in the legislative domain or in the individual woman's conscience. As both a legislator and a judge, O'Connor faced legal questions regarding abortion and believed the issue to be complex.

Once a member of the United States Supreme Court, O'Connor did not draw from the right-to-privacy line of cases when drafting her opinions. Instead, she created a "new" standard, the "undue burden test," which was eventually cited in Planned Parenthood v. Casey and became the national standard for determining limitations on abortion rights.

O'Connor was did not look at the issue of abortion without examining its context within the landscape of fundamental rights jurisprudence and how that shifted during her time on the bench. It is unclear whether the Court's 5-4 decision in upholding the Federal Partial-Birth Abortion Ban would have been decided differently if O'Connor were still on the bench.
However, during her tenure at the Supreme Court, the central holding of Roe v. Wade was continually reaffirmed.

-- Jennifer Wertkin

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