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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

47 Pages Posted: 6 Oct 2011 Last revised: 20 Oct 2011

Roy G. Spece Jr.

University of Arizona - James E. Rogers College of Law

Date Written: September 13, 2011

Abstract

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.

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

Suggested Citation

Spece, Roy G., 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 (September 13, 2011). Whittier Law Review, Forthcoming ; Arizona Legal Studies Discussion Paper No. 11-28. Available at SSRN: https://ssrn.com/abstract=1939521

Roy Spece (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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