The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health

Abstract

In this essay we consider the implications of Whole Woman’s Health v. Hellerstedt for the future of abortion regulation. We draw on our recent article on health-justified abortion restrictions — Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428 (2016) — to describe the social movement strategy and the lower court rulings that led to the Supreme Court’s decision. We show that in Whole Woman’s Health the Court applies the undue burden framework of Planned Parenthood v. Casey in ways that have the potential to reshape the abortion conflict. In Whole Woman’s Health, the Court insisted on an evidentiary basis for a state’s claim to restrict abortion in the interests of protecting women’s health. The Court required judges to balance the demonstrated benefit of the law against the burden that a shrunken abortion infrastructure will have on the ability of women to exercise their constitutional rights.

A crucial aspect of the Court’s decision in Whole Woman’s Health is the guidance it provides judges in determining the burdens and benefits to balance in the Casey framework. Particularly notable, even unexpected, is the Court’s capacious understanding of “burden” as the cumulative impact of abortion regulation on women’s experience of exercising their constitutional rights. By clarifying what counts as a burden and what counts as a benefit to be balanced within the Casey framework, the decision constrains regulations explicitly aimed at protecting fetal life as well as those ostensibly intended to protect women’s health. In these and other ways, Whole Woman’s Health robustly reaffirms judicial protection for the abortion right.

Keywords: abortion, balancing, health, evidence, undue burden, Casey, privacy, substantive due process