Abortion Rights Remain on Solid Constitutional Footing

May 19, 2017
Guest Post

*This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

by Stephanie Toti, Reproductive Rights Advocate

In an unbroken line of precedent spanning more than four decades, the Supreme Court has consistently held that a woman’s right to end a pregnancy is a fundamental component of the liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. The right at stake encompasses not merely the right to obtain an abortion procedure, but also, more broadly, “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). Despite seemingly relentless efforts by anti-choice advocates to undermine, overrule, or chip away at this right, it remains on solid constitutional footing. Last year’s historic decision in Whole Woman’s Health v. Hellerstedt, 579 U.S. __, 136 S. Ct. 2292 (2016), provides a potent reaffirmation of the Supreme Court’s abortion jurisprudence, clarifying both the robust nature of the protection the Constitution affords to “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy” Casey, 505 U.S. at 851, and the role of the courts in enforcing that protection.

Restrictions on abortion are subject to the undue burden standard set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey. Pursuant to this standard, a law is unconstitutional if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877. Before Whole Woman’s Health, lower courts disagreed on the nature of the test, with some holding that it was a variant of rational basis scrutiny requiring strong deference to legislative preference. Some even held that, unless a law made it impossible for most women in a jurisdiction to obtain an abortion, it could not impose an undue burden. See, e.g., Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 597-600 (5th Cir. 2014). The Supreme Court’s decision in Whole Woman’s Health made clear that such interpretations of the undue burden standard are erroneous, and it abrogated them in a decisive fashion. The Court explained that rational basis scrutiny is incompatible with abortion’s status as a fundamental right, declaring emphatically that it is “wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.” Whole Woman’s Health, 136 S. Ct. at 2309.

Instead, the Court held that a law violates the undue burden standard if it imposes burdens on women that exceed the benefits it provides. It struck down the restrictions at issue—a pair of Texas laws that the State had defended as reasonable health and safety regulations—because “neither . . . confers medical benefits sufficient to justify the burdens upon access that each imposes.” Id. at 2300. Its ruling clarified that the government may not impose obstacles to abortion access for no good reason, even if those obstacles will not prevent women from ultimately obtaining an abortion. As a result of the decision, no jurisdiction can force abortion patients to jump through unnecessary (and sometimes costly, stressful, and demeaning) hoops as a condition of exercising their constitutionally-protected rights. 

The Supreme Court also made clear that the benefits and burdens that derive from an abortion restriction must be established by credible evidence, not speculation, junk science, or legislative fiat, as some courts had permitted. Dispelling a popular misinterpretation of its decision in Gonzales v. Carhart, 550 U.S. 124 (2007), the Court declared that “[t]he statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court’s case law.” Whole Woman’s Health, 136 S. Ct. at 2310. Instead, courts reviewing abortion restrictions must evaluate the evidence independently, using the same rules of admissibility and reliability that apply in all other cases, and make findings based on the weight of the evidence. Id.

Whole Woman’s Health calls into question the constitutionality of numerous abortion restrictions currently in force across the country. These include targeted regulation of abortion provider (TRAP) laws that impose arbitrary limitations on abortion providers and facilities; laws that deny abortion patients the benefits of medical progress; and laws that require healthcare professionals to exaggerate the risks of abortion to their patients. In the coming months, such restrictions will undoubtedly be challenged and hopefully be defeated, breaking down unnecessary barriers to reproductive healthcare and the full realization of personal liberty. 

Although there has been a great deal of anxiety since last year’s elections about the future of abortion rights, I think that a retreat from settled law is unlikely. The Supreme Court has long recognized that its “power lies . . . in its legitimacy.” Casey, 505 U.S. at 865. Overruling four decades of precedent, reaffirmed in a forceful and well-reasoned opinion just last year, would damage the legitimacy of the Court in a profound way. As the Court said in Casey, “to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.” Id. at 867. Particularly now, when the public’s faith in so many other institutions of government has been shaken, Members of the Court are unlikely to take action that would jeopardize the Court’s standing and further destabilize the constitutional order. I have faith that a commitment to the rule of law, the principle of stare decisis, and the role of the judiciary as the ultimate guardian of constitutional rights will lead the Court to adhere to its abortion jurisprudence—from Roe v. Wade to Whole Woman’s Health—and continue to ensure that all people are able to make “intimate and personal choices” based on their “own concept of existence.” Casey, 505 U.S. at 851.