by Neil S. Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy at Duke University
Rarely is a Supreme Court decision both reassuring and concerning. Whole Woman’s Health v. Hellerstedt is such a decision. Supporters of women’s reproductive freedom can breathe a sigh of relief, but they should not celebrate too much or too long.
The Court’s decision offered the strongest reaffirmation of the constitutional status of abortion rights in America since its 1992 decision in Planned Parenthood v. Casey. The five-Justice majority in Whole Woman’s Health held that it is unconstitutional under Casey for states to restrict access to abortion in the name of protecting women’s health when those restrictions lack medical justification and have the effect of making it significantly more difficult for women to obtain safe reproductive healthcare.
The Court’s ruling is correct under Casey, which prohibits laws that have the purpose or effect of imposing an “undue burden” on the abortion right—and which, in applying that standard, balanced the asserted benefits and actual burdens of the abortion regulations at issue. Abortion is so safe that complications rarely arise. Yet Texas, notwithstanding the absence of any health justification, required doctors who perform abortions to have admitting privileges at local hospitals (which they cannot obtain). Texas also required abortion clinics to be outfitted as mini-hospitals (which is prohibitively expensive for most clinics). No such requirements were imposed on childbirth, colonoscopy or liposuction, which have substantially higher mortality rates than abortion. As the Court concluded, a “burden” on abortion access that is imposed in the name of protecting women’s health is “undue” when the burden is both severe and very unlikely to protect women’s health.
TRAP laws (targeted regulation of abortion providers) around the country are in serious constitutional trouble. So are many fetal-protective regulations of abortion, because they too are governed by Casey and so are subject to the same balancing test.