growth, and on the other by pressure from the Catholic Church and political
Roe v. Wade established the right to abortion in the United States.
since the 1973 Roe decision, anti-abortion activism has created a complex legal
landscape surrounding the constitutional right to abortion. The Supreme Court
retreated from the broad protection of abortion within the first trimester under
Roe’s framework in the early 1990s, establishing an “undue burden” standard in
Planned Parenthood of Southeastern Pennsylvania v. Casey.
As lower courts struggled to implement the Casey standard, anti-abortion acti-
vists flooded state and federal legislatures with laws to test the constitutional lim-
its of abortion regulation. As of January 1, 2021, at least twenty-three states have
imposed stringent standards on abortion clinics,
including mandated counseling
designed to dissuade people
from obtaining abortions,
required waiting periods
before an abortion,
required parental involvement before a minor obtains an
and limited use of state Medicaid funds to pay for medically necessary
all of which narrow the protections of abortion rights under the Casey
Twenty-four years after Casey, in Whole Woman’s Health v. Hellerstedt, the
Court upheld the undue burden standard and used it to strike down a stringent
Texas state law that required abortion providers to obtain admitting privileges at
a local hospital and abortion clinics to make significant structural modifications
1. See Stephanie Schorow, Setting the Stage for Roe v. Wade, THE HARV. GAZETTE (Nov. 5, 2010),
2. See Roe v. Wade, 410 U.S. 113 (1973).
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833
, 837 (1992).
4. See State Laws and Policies: Targeted Regulation of Abortion Providers, GUTTMACHER INST. (Jan.
1, 2021), https://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers.
5. The Georgetown Journal of Gender and the Law acknowledges that people of all gender identities
may seek abortion and thus are also forced to navigate the same restrictive thicket of policies
surrounding abortion. Abortion is not just a cisgender women’s issue, but that of any pregnant person,
independent of their gender identity. Because the vast majority of case law and statutory code regarding
abortion refers exclusively to cisgender women, this Article will use the terms “woman” or “women”
when directly discussing statutes and case law that refer only to cisgender women, and otherwise seek to
use more gender-inclusive language. While a more robust discussion of the particular difficulties that
trans and nonbinary people face in obtaining abortion is beyond the scope of this Article, it is worth
Noting that particularly because most laws and decisions only refer to cisgender women, those who are
not cisgender may experience additional difficulties in seeking abortion care. See generally Heidi
Moseson et al., The Imperative for Transgender and Gender Nonbinary Inclusion, 135 OBSTETRICS &
GYNECOLOGY 1059, 1059–68 (2020); Caitlin van Horn, Trans and Nonbinary People Get Abortions
Too, ALLURE (July 30, 2019), https://www.allure.com/story/abortion-gender-neutral-language-transgender-
6. See State Laws and Policies: Counseling and Waiting Periods for Abortion, GUTTMACHER INST. (Jan.
1, 2021), https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion.
7. See id.
8. See State Laws and Policies: Parental Involvement in Minors’ Abortions, GUTTMACHER INST. (Jan. 1,
9. See State Laws and Policies: State Funding of Abortion Under Medicaid, GUTTMACHER INST. (Jan.
1, 2021), https://www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid.
10. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2314–18 (2016).
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