Taking Abortion Rights Seriously: Toward a Holistic Undue Burden Jurisprudence.

• Author: Fetrow, Kate L.

Table of Contents Introduction I. Overview of Abortion Jurisprudence A. Early Development of the Doctrine B. Revisiting the Undue Burden Standard: Whole Woman's Health II. Critique of the Undue Burden Standard A. The Current Understanding of the Undue Burden Standard Fails to Position the Right from the Perspective of the Woman B. Because of Methodological and Quantitative Difficulties, Changes in the Abortion Rate Are Difficult to Measure C. Even When Changes in the Abortion Rate Can Be Measured, Such Changes Are Not Reliable Metrics for Whether Women Face an Undue Burden in Accessing Abortion Care D. By Considering Each Restriction Individually, the Undue Burden Standard Allows States to Incrementally Decrease Abortion Access III. An Alternative Approach to Evaluating Undue Burdens A. Alternative Model 1. Comparing abortion regulatory regimes to analogous medical procedures 2. Considering abortion regulations holistically B. Applications of the Alternative C. Remedies Under the Holistic Approach Conclusion Introduction

Since the landmark decision in Roe v. Wade established that the Fourteenth Amendment's "right of personal privacy includes the abortion decision," (1) courts and advocates have grappled with balancing women's privacy rights and the state's interests in women's health and safety, (2) the integrity of the medical profession, (3) and fetal life. (4) Two decades later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court established the standard for considering abortion regulations under the Fourteenth Amendment: whether the law imposes an "undue burden" on women seeking abortion care. (5) But the potential power of the Supreme Court's chosen standard, the undue burden test First announced in Casey, has never been fully realized.

The undue burden standard has been the subject of numerous scholarly discussions and critiques. (6) Recent critiques generally focus on alternative constitutional arguments litigants might make beyond an undue burden challenge, (7) potential problems with the doctrine's foundational assumptions, (8) and its application to particular types of abortion restrictions. (9) But much less has been written as to how the standard should be applied--and very little that addresses the rearticulation of the standard in Whole Woman's Health v. Hellerstedt. (10)

This Note helps fill that gap. It proposes an understanding of the undue burden standard that corrects the balance between these competing interests. On that understanding, the standard tethers abortion access to comparable medical procedures and holistically assesses whether there is an undue burden. This approach prevents states from chipping away incrementally at abortion rights, improves administrability of the standard, centers the rightholder in the analysis, and provides clearer rules for regulators and courts alike.

This Note proceeds in three Parts. Part I explores the creation and evolution of the Supreme Court's undue burden standard in its current form. Today, the Court applies an undue burden standard that asks whether a regulation or statute, "while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice." (11)

Part II offers a critique of this understanding of the undue burden standard. Today, advocates and courts approach abortion regulations in isolation rather than considering the legal landscape of abortion restrictions holistically. This approach allows states to put downward incremental pressure on abortion access. States can chip away at the right to an abortion by passing regulations that, individually, do not impose an undue burden. Because challenges are to individual regulations, not the regulatory regime overall, this incremental approach effectively insulates the whole regime from judicial review.

Part III proposes an alternative understanding of the undue burden standard to address this problem. Instead of inquiring whether a particular provision of a statute or regulation imposes an undue burden, courts should ask whether women who seek abortions face an undue burden as compared with the burdens imposed on access to analogous medical procedures. This framework better protects the constitutional right to abortion access by fully capturing the state's interest in women's health and the integrity of the medical profession and by avoiding downward incremental pressure on abortion access. These comparisons must be based on the interests motivating the state to implement the regulatory regime. For regulatory regimes motivated by state interests not unique to abortions--women's health and the integrity of the medical profession (12)--there is no reason to treat abortion differently from these analogous medical procedures. (13) And deviations based on the state interest unique to abortion--the asserted interest in potential life--must be assessed against the baseline of the treatment of those analogous procedures. I explore how this alternative model would operate in practice by analyzing its implications for the reasoning in Casey and Whole Woman's Health. Finally, I explain what judicial remedies under this approach would entail.

1. Overview of Abortion Jurisprudence

   1. Early Development of the Doctrine

      A woman's right to terminate a pregnancy has its roots in the U.S. Supreme Court's earliest cases establishing a "zone of privacy." (14) Most notably, Griswold v. Connecticut established the right of married couples to use contraceptives. (15) The Court soon extended this right to unmarried individuals in Eisenstadt v. Baird, and in doing so applied the right of privacy to the individual rather than to the marriage. (16) This laid the groundwork for when, a year after Eisenstadt, the Court squarely confronted abortion in Roe v. Wade. (17)

      In Roe, the Court struck down Texas's absolute ban on abortion, holding that it violated the Fourteenth Amendment's Due Process Clause. (18) In doing so, the Court cautioned that "the right of personal privacy includes the abortion decision, but ... this right is not unqualified. " (19) Under Roe, in the First trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." (20) In the second trimester, the state may "regulate the abortion procedure in ways that are reasonably related to maternal health." (21) And in the third trimester, the state may regulate or ban abortions "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." (22)

      But this three-trimester framework did not last long. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld Roes essential holding but entirely altered the Roe standard, replacing the trimester test with a viability framework. (23) The Court stated:

      [T]he right of the woman [is] to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. (24) But after fetal viability, the state has the "power to restrict abortions ... if the law contains exceptions for pregnancies which endanger the woman's life or health." (25)

      Subsequent litigation has primarily focused on the restrictions imposed prior to viability. (26) In evaluating the constitutionality of these restrictions, the Court has crafted a test to determine whether a regulation imposes an "undue burden" on the right to a pre-viability abortion. (27) Under this rubric, the "finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." (28) The test thus requires consideration of two separate issues: the burden placed in the path of a woman seeking an abortion and the legitimacy of the interest asserted by the state in imposing that burden. (29) In evaluating this second consideration, the Court has articulated three distinct interests a state may assert in justifying an abortion restriction: protection of "the health of the woman," (30) preservation of "the integrity and ethics of the medical profession," (31) and promotion of "the life of the fetus." (32)

      Since Casey, the Court has continued to apply the undue burden standard. First, in Stenberg v. Carhart, the Court considered a law in Nebraska that banned a particular type of abortion procedure called "dilation and extraction" that the legislature titled "partial birth abortion." (33) Applying the undue burden standard, the Court struck down the ban. (34) The Court observed that the ban, which applied to both pre- and post-viability abortions, lacked a maternal health exception pre-viability and thus did not adequately preserve women's right to access pre-viability abortions, (35) though the Court left open the possibility that a similar ban that included such an exception might pass constitutional muster. (36) The analysis presented by both the parties and the Court focused exclusively on whether the Nebraska partial-birth abortion statute violated women's right to privacy (37) and whether abortion providers had safe alternatives to the banned procedure. (38) The Court concluded that the law, which banned dilation and extraction procedures in all circumstances, ignored medical "uncertainty" as to whether that procedure would be necessary in some circumstances. (39) This, the Court determined, created a "significant health risk that rendered the law, at least in its absolute form without a health exception, an undue burden on abortion access. (40) Notably, this analysis made no reference to any other abortion restrictions in Nebraska that might have interacted with the procedure-specific...