Faute De Mieux: Recognizing and Accepting Whole Woman's Health for Its Strengths and Weaknesses

By Kendis, Becca | Case Western Reserve Law Review, Summer 2019 | Go to article overview

Faute De Mieux: Recognizing and Accepting Whole Woman's Health for Its Strengths and Weaknesses


Kendis, Becca, Case Western Reserve Law Review


CONTENTS  INTRODUCTION I. EVOLUTION OF ABORTION JURISPRUDENCE: FROM ROE TO WHOLE       WOMAN'S HEALTH       A. Recognizing a Constitutional Right to Abortion and           Adopting the Trimester Framework       B. Undoing Roe's Trimester Framework       C. Stenberg and Gonzales       D. Ambiguities and Circuit Splits in the Wake of Casey          and Gonzales       E. TRAP Laws and Whole Woman's Health II. ANALYZING THE PURPORTED AND ACTUAL BENEFITS OF ABORTION       RESTRICTIONS AFTER WHOLE WOMAN'S HEALTH       A. Recognizing Abortion as a Safe Medical Procedure       B. Critically Analyzing Evidence of Purported Benefits in          the Abortion Specific Context       C. The Role of Junk Science and Substantial Uncertainty          After Whole Woman's Health III. ANALYZING THE BURDENS IMPOSED BY ABORTION RESTRICTIONS       AFTER WHOLE WOMAN'S HEALTH       A. Important Take-Aways from the Majority's Burden Analysis          1. Capacity Analysis          2. Cumulative-Burden Analysis          3. Theoretical Possibilities Insufficient to Counter             Evidence of Burden       B. Applicability of Whole Woman's Health's Burden Analysis           to Future Abortion Challenges          1. The "Benefit" of Hindsight          2. Dramatic Fact Patterns          3. Decreasing Access vs. Impeding the Expansion of Access IV. REMAINING QUESTIONS REGARDING THE CORRECT APPLICATION OF       THE UNDUE-BURDEN STANDARD       A. Balancing Benefits and Burdens       B. Large-Fraction Test       C. Fetal-Protective Restrictions       D. Impermissible Purpose CONCLUSION 

INTRODUCTION

Already a mother of two, Valerie Peterson wanted another child but had been "told [for years that she] couldn't have any more children." (2) Then, in 2015, Peterson received some shocking news: she was pregnant. Unfortunately, her happiness turned to devastation when her sixteen-week sonogram revealed that the fetus's brain and spinal cord had not developed properly. Peterson decided to terminate her pregnancy, rather than wait to miscarry or deliver a stillborn fetus. (3) However, after the Texas legislature passed numerous onerous abortion regulations in 2013 through House Bill 2 ("H.B. 2"), (4) more than half of the state's abortion clinics were forced to close, and Peterson's doctor struggled to find her a timely appointment at a nearby facility. (5) As a result, Peterson decided to travel to Florida, a state with less restrictive abortion laws, where she was able to promptly receive the care she needed. The combined cost of the procedure and the trip was "close to $5,000," a price that Peterson realized many women could not afford. (6)

Less than a year later, the Supreme Court struck down two of H.B. 2's provisions in Whole Woman's Health v. Hellerstedt, (7) after finding that "neither ... confers medical benefits sufficient to justify the burdens upon [abortion] access that each imposes." (8) The "admitting-privileges requirement," which had forced the closure of nineteen of the state's forty-one clinics, (9) required "[a] physician performing or inducing an abortion ... [to], on the date the abortion is performed or induced, have active admitting privileges at a hospital that ... is located not further than 30 miles from the location at which the abortion is performed or induced." (10) The "surgical-center requirement," which threatened to close fourteen to fifteen more clinics if allowed to go into effect, (11) required abortion clinics to meet "the minimum standards adopted under [the Texas Health and Safety Code] for ambulatory surgical centers." (12) After carefully analyzing relevant data and studies and weighing the restrictions' benefits and burdens, the Court held that both provisions unconstitutionally imposed an undue burden on the right to abortion. (13)

Reproductive rights advocates celebrated the victory, and many deemed the majority's careful consideration of public health and medical evidence a "win" for "science. …

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