The Purpose Prong of Casey's Undue Burden Test and its Impact on the Constitutionality of Abortion Insurance Restrictions in the Affordable Care Act or Its Progeny
Roy G. Spece Jr.
University of Arizona - James E. Rogers College of Law
September 13, 2011
Whittier Law Review, Forthcoming
Arizona Legal Studies Discussion Paper No. 11-28
Abortion insurance restrictions in the Patient Protection and Affordable Care Act (“PPACA”) and its progeny have severe effects and might therefore be per se illegal under SCOTUS abortion doctrine. If not, they are at least subject to intermediate scrutiny in the form of the undue burden test. This article examines the authorities concerning interpretation of the purpose prong of that test, and it has concludes that, in light of precedent and goals of creating political accountability and better lawmaking, the best articulation of the purpose prong is that it demands that the government prove that not a single one of its actual purposes was both improper (such as a desire to interfere with abortion, even to save life) and a substantial factor in leading to its restriction. The article also shows that courts should consider a broad array of possible indicators of an improper purpose, both concerning a package of statutory provisions or any single provision. Finally, the article shows that a broad array of factors indicate that many of the abortion restrictions in the PPACA and its progeny are unconstitutional under the purpose prong of the undue burden test.
Number of Pages in PDF File: 47
Keywords: Patient Protection and Affordable Care Act, abortion, medicine, health, undue burden, abortion insurance, abortion restrictions, insurance exchanges, health care reform, governmental purpose, constitution, abortion doctrine, unconstitutional effects, unconstitutional purposes
Date posted: October 6, 2011 ; Last revised: October 20, 2011