Restoring Casey's Undue-Burden Standard After Whole Women's Health v Hellerstedt

56 Pages Posted: 3 Aug 2017

See all articles by Stephen G. Gilles

Stephen G. Gilles

Quinnipiac University School of Law

Date Written: July 31, 2017


Justice Breyer’s opinion for the Court in Whole Women’s Health v Hellerstedt claims to be nothing more than a faithful application of Casey v Planned Parenthood’s undue-burden standard. According to Breyer, Casey’s undue-burden standard requires courts to balance an abortion regulation’s burdens on access to abortion against its expected benefits, and entails an unspecified degree of heightened scrutiny with regard to the legislature’s factual premises. Applying this test, Breyer held that Texas’ admitting-privileges and surgical-center requirements imposed undue burdens: their maternal-health benefits were found to be negligible, while their burdens – which were found to have caused the closing of many Texas abortion clinics – created a substantial obstacle to abortion access.

Although the result Justice Breyer reached is defensible, his interpretation of Casey is not. As the joint opinion in Casey explained, “[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” This substantial-obstacle test has two prongs: the effects prong, which focuses solely on whether a regulation’s burdens create a substantial obstacle, and the purpose prong, which focuses solely on whether the regulation is reasonably related to a legitimate state interest. Casey’s applications of the undue-burden standard demonstrate that neither prong of the substantial-obstacle test involves balancing regulatory burdens. Nor does Casey envision or employ a third step, in which the court weighs the benefits and burdens it previously considered separately.

Justice Breyer offers no normative defense of his new balancing test, which tilts the undue-burden standard against state abortion regulations, whether they aim to protect maternal health or fetal life. Balancing is especially inappropriate when it comes to fetal-protective regulations. The Court has never explained how fetal lives can be balanced against women’s liberty interests, and any such balancing would replicate the very problem the undue-burden test attempts to solve: the undervaluing of fetal life in Roe and subsequent pre-Casey decisions.

As for Casey’s reasonably-related test, Justice Breyer is correct that it is less deferential than minimal rational-basis review, and thus entails some degree of heightened scrutiny. But he overshoots the mark. Casey’s version of reasonableness review asks whether, in light of evidence about its actual or expected effects, a regulation will plausibly advance the state’s asserted interests to some extent. Breyer’s opinion, by contrast, relies instead on more exacting heightened-scrutiny techniques – including balancing, least-restrictive-alternative analysis, and overbreadth – that have no place in Casey’s reasonableness review.

Justice Breyer’s misinterpretations of Casey should receive no protection from stare decisis. As between Casey and Whole Women’s Health – which offers no defense of its approach other than fidelity to Casey – the Court should choose Casey. The Court should overrule Breyer’s balancing test and make clear that Casey’s reasonably-related test calls for deferential reasonableness review, rather than the stricter scrutiny implicit in Breyer’s analysis of the challenged Texas regulations. Failing that, it should confine Breyer’s innovations to review of maternal-health regulations to ensure that Casey’s undue-burden standard, rightly understood, continues to govern regulations aimed at protecting fetal life.

Keywords: Substantive Due Process, Abortion Rights, Undue-Burden Standard, Levels of Scrutiny, Heightened Scrutiny, Strict Scrutiny, Right to Elective Abortion, Maternal-Health Abortion Regulations

Suggested Citation

Gilles, Stephen G., Restoring Casey's Undue-Burden Standard After Whole Women's Health v Hellerstedt (July 31, 2017). Quinnipiac Law Review, Vol. 35, Forthcoming. Available at SSRN:

Stephen G. Gilles (Contact Author)

Quinnipiac University School of Law ( email )

275 Mt. Carmel Ave.
Hamden, CT 06518
United States
203-582-3284 (Phone)
203-582-3244 (Fax)

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics