CONTENTS INTRODUCTION I. EVOLUTION OF ABORTION JURISPRUDENCE: FROM ROE TO WHOLE WOMAN'S HEALTH A. Recognizing a Constitutional Right to Abortion and Adopting the Trimester Framework B. Undoing Roe's Trimester Framework C. Stenberg and Gonzales D. Ambiguities and Circuit Splits in the Wake of Casey and Gonzales E. TRAP Laws and Whole Woman's Health II. ANALYZING THE PURPORTED AND ACTUAL BENEFITS OF ABORTION RESTRICTIONS AFTER WHOLE WOMAN'S HEALTH A. Recognizing Abortion as a Safe Medical Procedure B. Critically Analyzing Evidence of Purported Benefits in the Abortion Specific Context C. The Role of Junk Science and Substantial Uncertainty After Whole Woman's Health III. ANALYZING THE BURDENS IMPOSED BY ABORTION RESTRICTIONS AFTER WHOLE WOMAN'S HEALTH A. Important Take-Aways from the Majority's Burden Analysis 1. Capacity Analysis 2. Cumulative-Burden Analysis 3. Theoretical Possibilities Insufficient to Counter Evidence of Burden B. Applicability of Whole Woman's Health's Burden Analysis to Future Abortion Challenges 1. The "Benefit" of Hindsight 2. Dramatic Fact Patterns 3. Decreasing Access vs. Impeding the Expansion of Access IV. REMAINING QUESTIONS REGARDING THE CORRECT APPLICATION OF THE UNDUE-BURDEN STANDARD A. Balancing Benefits and Burdens B. Large-Fraction Test C. Fetal-Protective Restrictions D. Impermissible Purpose CONCLUSION INTRODUCTION
Already a mother of two, Valerie Peterson wanted another child but had been "told [for years that she] couldn't have any more children." (2) Then, in 2015, Peterson received some shocking news: she was pregnant. Unfortunately, her happiness turned to devastation when her sixteen-week sonogram revealed that the fetus's brain and spinal cord had not developed properly. Peterson decided to terminate her pregnancy, rather than wait to miscarry or deliver a stillborn fetus. (3) However, after the Texas legislature passed numerous onerous abortion regulations in 2013 through House Bill 2 ("H.B. 2"), (4) more than half of the state's abortion clinics were forced to close, and Peterson's doctor struggled to find her a timely appointment at a nearby facility. (5) As a result, Peterson decided to travel to Florida, a state with less restrictive abortion laws, where she was able to promptly receive the care she needed. The combined cost of the procedure and the trip was "close to $5,000," a price that Peterson realized many women could not afford. (6)
Less than a year later, the Supreme Court struck down two of H.B. 2's provisions in Whole Woman's Health v. Hellerstedt, (7) after finding that "neither ... confers medical benefits sufficient to justify the burdens upon [abortion] access that each imposes." (8) The "admitting-privileges requirement," which had forced the closure of nineteen of the state's forty-one clinics, (9) required "[a] physician performing or inducing an abortion ... [to], on the date the abortion is performed or induced, have active admitting privileges at a hospital that ... is located not further than 30 miles from the location at which the abortion is performed or induced." (10) The "surgical-center requirement," which threatened to close fourteen to fifteen more clinics if allowed to go into effect, (11) required abortion clinics to meet "the minimum standards adopted under [the Texas Health and Safety Code] for ambulatory surgical centers." (12) After carefully analyzing relevant data and studies and weighing the restrictions' benefits and burdens, the Court held that both provisions unconstitutionally imposed an undue burden on the right to abortion. (13)
Reproductive rights advocates celebrated the victory, and many deemed the majority's careful consideration of public health and medical evidence a "win" for "science." (14) Some commentators have even suggested that this decision will greatly limit states' ability to restrict abortion access without the support of scientific or other empirical evidence going forward. (15) Others hailed Justice Breyer's majority opinion for breathing life back into the standard of review applied to abortion restrictions, which had seemingly devolved into little more than rational-basis review. (16)
Despite this high praise, many questions remain about the impact the Whole Woman's Health decision will ultimately have on future challenges to anti-abortion laws, including those purportedly enacted in the interest of protecting women's (17) health ("woman-protective abortion restrictions"), (18) and those that purport to advance the government's interest in protecting fetal life ("fetal-protective restrictions"). (19) While recognizing the aspects of the decision that seemingly fortified the constitutional right to abortion access, this Note demonstrates how ambiguities in the majority opinion have made the decision incredibly vulnerable to manipulation by unsympathetic lower courts. This Note also identifies potential pitfalls that advocates will need to address in future challenges, and it suggests ways of dealing with some of those pitfalls through a careful reading of Whole Woman's Health.
Part I of this Note provides an overview of the evolution of abortion jurisprudence in the United States. Part II critically evaluates the Whole Woman's Health majority's analysis of the "benefits prong" of the undue-burden balancing test. Part III engages in a similar analysis of the "burdens prong." Part IV dissects some of the decision's ambiguities, which raise questions regarding the correct application of the standard of review in future challenges of abortion restrictions.
EVOLUTION OF ABORTION JURISPRUDENCE: FROM ROE TO WHOLE WOMAN'S HEALTH
Recognizing a Constitutional Right to Abortion and Adopting the Trimester Framework
In Roe v. Wade (20) the Supreme Court held that the substantive due process right to privacy encompasses a woman's right to choose to terminate her pregnancy. However, the Court determined that this right is not unlimited, recognizing as valid state interests in protecting women's health and potential human life. (21) Citing medical evidence demonstrating that first trimester abortions are safer than childbirth, the Court determined that states could regulate abortion for the purpose of protecting women's health only after the first trimester. (22) The Court held that states' interest in potential life became compelling after the point of fetal viability, (23) which medical evidence suggested could occur as early as twenty-four weeks into a pregnancy. (24) Accordingly, the Court held that states could regulate or ban abortion for the purpose of protecting fetal life during the third trimester, "except when it is necessary to preserve the life or health of the mother." (25)
Justice Blackmun's opinion outlined some of the potential negative impacts of forced pregnancy and forced motherhood, including tolls on a woman's mental and physical health, economic burdens, and stigma. (26) However, the opinion has been criticized for failing to "identify] the ways in which laws restricting abortion are inherently discriminatory [against women]." (27)
Roe has also been criticized for relying almost entirely on empirical evidence to support drawing a line at viability, while failing to analyze "the constitutional principles that directed the choice of the particular line drawn." (28) Without a constitutional justification, commentators have long expressed concern that a woman's right to choose will erode with advances in medical technology that push the point of viability earlier and earlier. (29)
Undoing Roe's Trimester Framework
Following Roe, the Court struck down numerous abortion restrictions under the trimester framework. In City of Akron v. Akron Center for Reproductive Health (Akron I), (30) for example, the Court struck down multiple provisions of an Akron, Ohio, ordinance, including, among others, a requirement that abortions be performed in hospitals after the first trimester, "informed-consent" requirements, and a mandatory twenty-four-hour waiting period after signing a consent form. (31) Some of these regulations represented an organized effort by the anti-abortion movement to pass abortion restrictions justified by largely unsubstantiated claims regarding the risks abortion posed to women's mental and physical health. (32) The informed-consent provision challenged in Akron I required physicians to tell their patients that:
[A]bortion is a major surgical procedure which can result in serious complications, including hemorrhage, perforated uterus, infection, menstrual disturbances, sterility and miscarriage and prematurity in subsequent pregnancies; and ... abortion may leave essentially unaffected or may worsen any existing psychological problems [a woman] may have, and can result in severe emotional disturbances. (33) Reproductive rights advocates provided evidence "refut[ing] the factual arguments supporting the ordinance," including psychological studies that found no connection between abortion and adverse psychological outcomes. (34)
In striking down the ordinance, the Court rejected the medical and psychological claims made in support of the restrictions and noted that "the safety of second-trimester abortions ha[d] increased dramatically" since the Court decided Roe v. Wade. (35) Justice O'Connor dissented, criticizing the trimester framework and the limitations it placed on the government's ability to advance its interest in protecting fetal life, and raising the idea of a more deferential "undue burden" analysis. (36)
Undeterred by Akron I, abortion opponents continued their efforts to disseminate the idea that abortion has negative psychological consequences and began to strategically manufacture an evidentiary basis for this claim. (37) These efforts eventually paid off.
A shift in the make-up of the Court called the future of Roe and the constitutional right to abortion into question. In Webster v. Reproductive Health Services, (38) the Court upheld a Missouri statute...