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Excerpted From: Nicolás Quaid Galván, Adopting the Cumulative Harm Framework to Address Second-generation Discrimination, 11 Columbia Journal of Race and Law 147 (January 2021) (Note) (302 Footnotes) (Full Document)


NicolásQuaidGalvánMany constitutional claims are analyzed as discrete, isolated occurrences. Examining a woman's right to receive an abortion is an instructive vehicle to demonstrate the power of different analytical frameworks. Imagine a pregnant person has chosen to exercise their “fundamental right to abortion.” Imagine that the government has passed four laws that impede on this person's ability to exercise this right. One law requires, after the initial visit to the doctor, that this person wait an additional twenty-four hours to consider the “nature of the procedure,” the health risks, and the probable age of the “unborn child.” This first law also requires this person to produce a written statement that they have taken these factors into consideration. If this person is married, the second law is triggered. The second law requires the person to produce a signed statement from their spouse that they are about to undergo an abortion. A third law requires physicians who perform abortions to have “admitting privileges” at a local hospital, and this hospital has the discretion whether to grant the physician this privilege. A fourth law mandates that private insurance can only be used for an abortion when the person's life would be threatened if the pregnancy is carried to term. Each law, in some way, imposes a different burden upon this person in obtaining an abortion.

This pregnant person now challenges these laws, arguing that they collectively present an “undue burden.” In this scenario, this person has not experienced a direct ban--a first-generation barrier--on their reproductive rights. Rather, this person faces second-generation barriers in attempting to exercise their rights--barriers which are more concealed, complex, and, arguably, more dangerous than their explicit predecessors.

A reviewing court, in considering the constitutionality of these regulations, will begin by analyzing whether the first law presents an undue burden, and then conduct the same analysis on the second, third, and fourth law. Under this method of constitutional review, the overall harm experienced by this person is not considered. Rather, the harm from each law is isolated and then analyzed. Commentators have called this analytical method the “sequential approach.”

A different analytical method would not analyze each harm in isolation. Rather, what I call the “cumulative harm framework” reviews the entirety of this person's harm--the impact from the four laws above--to determine whether this pregnant person has experienced an “undue burden” in attempting to receive an abortion. Stated differently, the four laws would be analyzed for their cumulative impact under this methodology. Under the hypothetical above, perhaps the mandatory twenty-four-hour waiting period is insufficient to trigger a constitutional violation. But, maybe the twenty-four-hour waiting period combined with the spousal consent requirement, the admitting privileges requirement, and the limitations on private health insurance, presents an undue burden.

This Note explores these two analytical frameworks of judicial review.

Part II discusses different substantive areas of law in which a reviewing court adopts the cumulative harm framework.

Part III explores the different substantive areas of law in which a reviewing court adopts the sequential approach.

Part IV evaluates the cumulative harm framework. This section begins by arguing that the framework more appropriately assesses constitutional harms from the perspective of the right-holder and that courts have the institutional capacity to adopt the framework more broadly. It asserts this framework is necessary to addressing second-generation discrimination experienced by Black people, Latinxs, and other minorities and communities of color. Part IV also critiques the framework. It argues that the cumulative harm framework is difficult to administer because there is no clear limit on which facts should be cumulated. It also argues that the framework permits unrestrained judicial review. Further, it argues that the cumulative harm framework may not be suited for evaluating prospective harm and facial challenges of law. This Note concludes by arguing for broader adoption of the cumulative harm framework because of its ability to prevent second-generation discrimination.

[. . .]

This Note has shown the power of different analytical methods of constitutional review. The Supreme Court employs the cumulative harm framework in multiple areas of law. In contrast, the Supreme Court also adopts the sequential approach in other areas of law. This Note evaluates the advantages and disadvantages of the cumulative harm framework. By doing so, this Note demonstrates that constitutional questions can turn on the analytical framework adopted by a reviewing court. Because the “Constitution protects individuals ... from unjustified state interference,” the judiciary should more broadly apply the cumulative harm framework. This framework is the best analytical method to combat new forms of discrimination and help the judiciary truly bring equal justice under law.

Editor-in-Chief, Columbia Journal of Race and Law, Volume 11. J.D. Candidate, Columbia Law School, 2021.

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