Respecting legislators and rejecting baselines: rebalancing Casey.

Author:Quast, Paul C.


In the last three years state legislatures have written and passed a torrent of abortion regulations across the United States. (1) These laws have come as pro-life politicians have taken control of many states' legislatures and executive offices. (2) Other contributing factors in this trend may include an increased number of people who define themselves as pro-life (3) and the exposure of bad actors within the abortion industry whose practices have led some to question the safety of current abortion practices. (4) Needless to say, many states have entered a bold era of regulations of abortion facilities, driving the market price for an abortion in many states to a level that puts many clinics out of business. (5)

Pro-life legislators and policymakers have developed and passed a variety of regulations, including stricter building codes for abortion clinics, (6) hospital admitting privilege requirements for abortion practitioners, (7) increased waiting periods, (8) and restrictions on the use of medical abortions. (9) Judicial responses to these regulations have been mixed, though largely negative. (10) Despite the diversity of state abortion regulations, these laws are subject to scrutiny under the standard set forth in Planned Parenthood of Southeast Pennsylvania v. Casey. (11) Scholars and judges on all sides of the abortion issue view the undue burden standard developed in Casey as fraught with ambiguity and uncertainty, with an untold number of law review articles, cases, and books attempting to interpret it. (12) Perhaps because of the contentious nature and stakes of interpreting this standard, no consensus has arisen to allow for a unified understanding of what "undue burden" means. (13) As a result, judges' and justices' attempts at utilizing the undue burden standard have been erratic, often yielding conflicting results from state to state and circuit to circuit. (14) The Supreme Court has done little to clarify its previous holdings in this matter. (15)

This Note will investigate ways in which judges analyze the cost and accessibility of abortion services after implementation of these new state regulations in determining whether the new regulations constitute an undue burden. In the absence of a clear Supreme Court ruling that defines what constitutes an "undue burden" under these new regulations, judges are forced to determine inconsistent "baselines" of cost and accessibility that constitute a misreading of Casey. For example, a judge may reason that a certain number of women are likely to seek abortions in the coming year in their state, and that a certain percentage of those will not end up being able to access that service if a regulation goes into effect. The number of potential abortions may decrease in response to increased cost of abortions--determined in light of travel time to alternate states or locations for abortion services, or other barriers that deter a woman from seeking an abortion. The judge then makes a determination of whether that interference is "undue." What results is an arbitrary ruling based on hypothetical percentages: while one judge might find that a twenty percent decrease in the number of abortions means the regulation is constitutional because it does not impose an undue burden, another judge might estimate that a similar regulation will result in a sixty percent decrease in the number of abortions and therefore is an undue burden. This Note will refer to these judicial estimates as "baselines," which is an appropriate term because judges often treat the number of clinics or number of abortions that occur in a state at a given time as a kind of benchmark from which they are not willing to depart. The fundamental issue with this trend is that restricting access to abortion itself does not necessarily constitute an undue burden.

As this Note will show, the current market demand for abortions in a particular state should not drive the Casey undue burden standard. Rather, the Casey standard seeks to balance the competing interests of a woman's constitutional right to an abortion with the state's legitimate interest in protecting both maternal health and promoting life. (16) While pro-choice advocates and certain judges will promote a view of Casey that looks only to the number of women prevented access to abortion services or the number of clinics shut down, the Supreme Court has never ruled that there is anything sacrosanct about the current or projected number of abortions in the undue burden calculation. The unreliability and sheer guesswork of these numbers aside, no precedent supports judges seeking to set or maintain these baselines, and these judges commit extreme judicial error when they do so.

Subjective determinations of what constitutes an undue burden under Casey will have implications beyond the confines of the specific case at bar. By stating unconstitutional baseline minimums of acceptable abortion access, courts will confuse the public, litigators, legislators, and other judges by improperly determining the proper inputs into the undue burden analysis. Unclear statements of the law additionally mean less persuasive precedent, (17) which undermines the courts' ability to uphold the rule of law. Particularly in the realm of abortion cases and the Casey balancing test, improper use or abuse of the standard allows courts to set precedents that will lead to a cycle of confused reasoning in later important and divisive cases. If courts regularly abuse the discretion given by Casey, they influence future courts' abilities to similarly abuse Casey and unconstitutionally deprive the states of their legitimate rights and the deference they deserve.

Part I of this Note describes the background cases leading to the Supreme Court's decision in Casey and the resulting undue burden standard. This Part also explains the limited circumstances in which the undue burden standard gives more definitive guidelines for judicial decisionmaking. Part II works through several federal district and appellate court cases to identify some of the underlying baseline presumptions and normative value judgments influencing judicial decisions in this area of the law. These baselines are often dispositive in determining whether a restriction on abortion is due or undue, cutting against the goodwill attempts by legislatures to make abortion as safe as possible while adhering to the Supreme Court's constitutional protection of the procedure. Importantly, this Note does not impute upon judges any bad faith or malfeasance in relation to their adjudications in this area, but rather seeks to emphasize the inherent vagueness of the undue burden standard. (18) Part III analyzes the impropriety of judicially created baselines and calls judges to account more clearly for their values on these matters when using the undue burden standard.

As a threshold matter, this Note does not support the undue burden standard as stated in Casey. While the use of a balancing test in important and controversial constitutional matters may be appropriate at times, the underlying premise of the Casey undue burden standard is deeply flawed. While at once stating that women should be free to decide when life begins, (19) the Court demands that for all states an unborn child is only a potential life, rather than an actual life, and establishes the balancing test using those unwavering parameters. States should have the authority to decide that a fetus, as an unquestionably distinct member of the human species, (20) is a person whose full value needs to be balanced against the liberty interests of his or her mother. Such a standard would both allow state lawmakers who value unborn human life to make laws to properly defend it, while giving other states the freedom to deny the personhood and value of the unborn or instead identify situations where liberty interests are deemed more valuable than life.


    1. The Fundamental Right to Abortion: Roe v. Wade

      Abortion shifted from a predominately state-centered issue to a strongly federal matter with the 1973 Supreme Court decision of Roe v. Wade. (21) Roe sought to resolve the constitutionality of a Texas statute that prohibited abortion at all stages except in circumstances where abortion was necessary to save the mother's life. (22) Following the constitutional reasoning of privacy cases such as Griswold v. Connecticut, (23) Eisenstadt v. Baird, (24) Loving v. Virginia, (25) Meyer v. Nebraska (26) and Pierce v. Society of Sisters, (27) the Court held that women have a fundamental right to abortion. (28) Limiting access to this right via regulation required a "compelling state interest" with the regulation "narrowly drawn to express only the legitimate state interests at stake." (29) Courts would be required to analyze abortion regulations using the rigorous strict scrutiny standard. (30) This right was only fully unrestricted during the first trimester when the mortality rate from abortion was lower than the mortality rate in normal childbirth. (31) After the first trimester the state could regulate abortion to the extent necessary to protect "maternal health." (32) Only after viability could the states make regulatory efforts to protect the fetal life. (33) Regulations to protect unborn fetal life could go so far as to prohibit all abortion after viability, "except when it is necessary to preserve the life or health of the mother." (34) By raising the issue of abortion to the federal level, Roe pushed the abortion issue to the fore of the national consciousness and sparked a debate that continues to rage today.

    2. Intermediary Cases: City of Akron, Thornburgh, and Webster

      Between Roe and Casey, the Supreme Court considered a number of cases regarding abortion, each time reaffirming the fundamental holding of Roe. (35) Three of these cases, in particular, demonstrate the development of...

To continue reading