Whole Woman's Health v. Hellerstedt (The Texas Abortion Case before the Supreme Court)

The Casey Court unduly balanced the exercise of a women's right to terminate her pregnancy in favor of states' rights to interfere with it. Keeping and applying the Casey “undue burden” test in Whole Woman's Health v. Hellerstedt, 15-274 (2016), and in all future state-regulated abortion cases, is itself an undue burden on individual liberty not justified by our constitutional jurisprudence. The Roberts Court should, in my view, revert to theRoe Court'swisdom indetermining the constitutionality of a state’s regulation of abortion.

Under Roe (1973) maternal health could not be regulated by the state until the end of the first trimester. A woman’s fundamental right to an abortion was unqualified up to that point. As the Roe Court put it, the decision of a woman to terminate her pregnancy,based on the medical judgment of her attending physician, was “free of interference by the State.” [Roe v. Wade, 410 U.S. 113, 163 (1973)] At the end of the first trimester, the Roe Court held that “the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.” [Roe v. Wade, 410 U.S. 113, 164 (1973)]

The Casey Court in 1992 expanded the State’s right to regulate maternal health to include the first trimester of pregnancy. In regulating maternal health, the only thing a state cannot do, the Court said, is enact “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion [and] impose an undue burden on the right.” [Planned Parenthood of Southeastern PA v. Casey,505 U.S. 833, 877 (1992)]

In so holding, the Casey Court opened the door to state democratic interference with a Fourteenth Amendment, protected liberty interest and intentionally authorized a low standard of review (minimal scrutiny)for most state-abortion regulations.

Short of virtually denying, or making it next to impossible, for a woman to terminate her pregnancy,a state canregulate abortion post-Casey as "maternal health" however it sees fit, as long as its regulations are not completely irrational and do not present a "substantial obstacle to a woman seeking an abortion [and] impose an undue burden on the right.”Arguably, this is true even if the regulations are unnecessary, as long as there is a rational relationship between them and the state's interest in maternal health.

The ongoing and cumulative impact of applying such a lopsided, balancing test is itself an undue burden on a woman's right to choose. If the fulcrum point of balancing state-interest and individual freedom is weighted toward state-interest, exercising individual freedom is unduly burdened (much like a teeter-totter with unequal weights on opposite sides).