Since Roe v. Wade, the Supreme Court has upheld a woman's right to choose previability abortion on several occasions. Planned Parenthood of Southeastern Pennsylvania v. Casey was one such case that grew out of the Court's abortion jurisprudence and changed the way states regulated abortion. However, Casey's decision is fraught with ambiguities that have facilitated legislative overreach, judicial abuse, and inconsistent interpretation and application of the constitutional standard. In some states, legislatures have regulated a woman's right to choose to such an extent that it is a practical impossibility. Recently, the Supreme Court struck down Texas's House Bill 2-a highly restrictive abortion statute that imposed oppressive standards on both abortion clinics and their physicians, leading to widespread clinic closures across the state of Texas. Although Texas's law did not survive the Supreme Court's scrutiny, the Court's failure to comprehensively address Casey's deeply rooted ambiguities has all but guaranteed that a woman's right to choose previability abortion will continue to be vulnerable to future attacks.
If the Court truly intends to protect a woman's right to choose, the undue burden standard elicited in Casey must be modified in a manner that provides guidance and clarity to lower courts, while facilitating fair and just results across jurisdictions. Where a circumstance as commonplace as poverty can functionally deny a woman her constitutional right to choose a previability abortion, the protections that Roe guaranteed to all women are merely illusory for many. This Note argues that rather than focusing on the minutiae of Casey's test, the Supreme Court should have adopted a test similar to the undue hardship standard found in the Americans with Disabilities Act (ADA). Part I begins by describing the Supreme Court's approach to abortion jurisprudence since its decision in Roe. Part II evaluates the district court and appellate court decisions that led to the Supreme Court's decision in Whole Woman's Health v. Hellerstedt. Part III details the ADA's undue hardship standard and its applicability to Casey, and Part IV concludes with an explanation of why the ADA's economic cost-based framework would have been the more appropriate method to address Casey's underlying problems.
Brooke M. Garrett,
Money Matters: Why the ADA's Undue Hardship Framework Could Save Casey and Legal Abortion in America,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol88/iss2/9