Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone

Abstract

This Note assesses the constitutionality of Texas House Bill 2 (H.B. 2), which regulates abortion providers, as applied to clinics located in the area between the state’s border with Mexico and internal federal immigration checkpoints. Should these statutory provisions go into full effect and lead to these clinics’ closure, undocumented immigrants living in the border zone will need to pass through the internal checkpoints to reach abortion clinics elsewhere in the state. The Note evaluates the Texas statutory provisions as applied to border-zone clinics using two distinct analytical frameworks: the undue burden analysis specific to abortion jurisprudence and the doctrine of unconstitutional conditions. The Note concludes that under either approach, H.B. 2, as applied to these clinics, violates the reproductive rights of undocumented immigrants and is therefore unconstitutional. The rights burden created for this group by Texas’s law regulating abortion clinics illuminates both the way in which federal-state allocations of power in the border zone may endanger substantive due process rights and, more broadly, the relationship between geographic space and substantive due process.

Keywords: Substantive due process, abortion, Planned Parenthood v. Casey, Casey, unconstitutional conditions, checkpoints, undocumented, border, H.B. 2