The foggy foggy due

Pablo Picasso, Woman with Book, 1932 (Norton Simon Foundation).

Scott Lemieux's Guardian piece on the Texas abortion clinic closure law mentioned:

Casey’s biggest sin was ruling that Pennsylvania’s 24-hour waiting period was constitutional. As the fifth circuit opinion observes, the Casey decision acknowledged that the regulation would be “particularly burdensome” for poor rural women and conceded that it would have “the effect of increasing the cost and risk of delay of abortions.” And yet, justices still found that it was not an undue burden. The road between this and So what if women in west Texas have to drive 150 miles to find an abortion clinic? is shorter than it should be.

I left an IANAL (but I have studied semiotics) note at LGM:

Anybody startled by the implication that there’s a “due burden”–that the state has a legitimate interest in marking it hard for a woman to get an abortion, but not that hard?
I googled it, out of curiosity, and got just three pages of results, only a tiny handful related to Casey (most of them are 19th-century things about English canon law and the dispute over whether clerical preferment should have any work–“a due burden”–attached to it). The coolest was a 2010 article by Khiara Bridges which says the standard

asks whether a regulation unduly burdens the abortion right by excessively expressing respect for and giving deference to the “life” of the fetus; conversely, the Court asks whether a regulation only, duly, burdens the abortion right by temperately and judiciously expressing respect for and giving deference to the “life” of the fetus.

It’s built into the argument that the fetus has a “life” that you’re bound to show respect and deference, but just so much as is temperate and judicious and no more. Like imagine a constitutional provision that everybody has to be polite, but you don’t need to be obsequious.

And Ramesh Ponnuru in 2005 thought that a due burden would be the one imposed by a total ban, because God, of course, but in that case there’s no such thing as an undue burden. Ain’t no mountain high enough. So the concept is really nonsensical.

As the commenters there pointed out, the Texas government doesn't say it's imposing a burden on Texas women, but rather claims the law is meant to "protect" them, and of course you can't challenge them on that except by proving that the dangers they're being protected from don't exist, as explained by the American College of Obstetricians and Gynecologists. Which is not likely to impress Justice Kennedy as important, as imaginary problems weigh very heavily on his mind. But it does impose a heavy burden on women who don't live near one of the eight urban clinics that the latest decision will leave able to stay open in the entire very large state, and you'd think the Supreme Court ought to give some thought to just how due it is.