In Abortion Litigation, It's the Facts That Matter

Abstract

This brief commentary for the Harvard Law Review Forum argues that courts need to do a better job of closely examining the facts underlying abortion legislation. Courts applying the undue burden standard generally demand from the plaintiffs fact-intensive proof that an abortion law will cause harm. At the same time, courts are highly deferential to the states’ own fact-based assertions about why these laws are needed. Although the “purpose prong” of the undue burden standard has largely been written off as toothless, courts can smoke out illegitimate purposes indirectly by looking more skeptically at the factual foundations supposedly necessitating abortion laws. Recent challenges to virtually identical abortion restrictions have turned on judges’ willingness or refusal to examine more closely the governments’ factual assumptions. This explains the opposite (preliminary) conclusions reached by the Fifth and Seventh Circuits, respectively, on the constitutionality of laws requiring abortion providers to obtain admitting privileges at nearby hospitals, an issue the Supreme Court appears likely to consider.

Keywords: Abortion, undue burden, Planned Parenthood v. Casey, Planned Parenthood v. Abbott, admitting privileges, TRAP laws, purpose prong

JEL Classification: K10, K41