Monday, March 21, 2016

The Unproductive Laws of Productive Rights by Nura Rafati

Justice Antonin Scalia’s passing on February 13, 2016, has raised many questions as to the fate of pending Supreme Court cases and decisions.  One of such cases is Whole Woman’s Health v. Hellerstedt, in which the petitioners bring a claim against the constitutionality of a 2013 Texas law that led to the closing of many abortion services in the state.[1] According to state legislators, the law was enacted in order to set a higher standard of care that aims to protect the health and well-being of women who seek abortions.[2] The impending case is one of many that the Supreme Court has faced with regard to women’s health and reproductive rights, where Justice Scalia consistently voiced a more conservative anti-abortion stance.
Abortions were first legalized in the 1973 Supreme Court decision of Roe v. Wade, which is considered perhaps one of the most controversial cases in recent history[3]. Though a landmark decision for advancing women’s rights and equality, Roe v. Wade was only the first step in ascertaining broader freedoms to women’s reproductive rights.  Over the years, the Supreme Court has addressed specific issues relating to the legality and constitutionality of abortions, and its decisions have defined and narrowed the scope of Roe v. Wade and the freedoms it facially provided.  The decision of Whole Women’s Health will largely come down to whether the Court sees the Texas law as an “undue burden”[4] on a woman’s path to terminating her pregnancy. 
Roe v. Wade held that a state could “properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”[5].  States took this statement to mean that they could impose standards and prerequisites to abortions, which potentially creates obstacles for women.  The Supreme Court has suggested that a woman has a right to be free from government interference, but not a right to governmental funding for abortion.[6] In Maher v. Roe, the Court upheld a Connecticut regulation that granted Medicaid benefits for childbirth, but not for medically unnecessary abortions.[7]  It reasoned that the state law placed no obstacles in the woman’s path and was merely a tool to encourage childbirth rather than abortion.
The Court has held that the Constitution provides individuals rights to be free from government interference and intrusion, but distinguishes those rights from positive liberty, such as receiving government benefits[8].  The undue burden standard was set in Planned Parenthood of Se. Pennsylvania v. Casey, where the Court sought to reconcile state interests with women’s constitutionality protected liberty.[9]  It held that a state law is invalid if it places a substantial obstacle in the path of a woman who wants to get an abortion before her fetus is viable[10].  Yielding from this decision is that a state can mandate a 24-hour waiting period before a woman undergoes an abortion[11].  However, spousal notification is invalid and considered an undue burden, and women under 18 need to have parental consent, unless there is court authorization to proceed with the procedure[12].

Since states do not have a uniform set of laws that regulate abortion, a woman’s location largely determines her access to abortion facilities and the procedures she has to undergo before obtaining the abortion.  While Roe protects a woman’s right to terminate her pregnancy, state laws can, and have, set parameters and conditions to that right—limiting its capacity and weakening its scope.  Whole Woman’s Health is a pivotal case that will affect women’s access to safe abortion clinics in Texas and across the country.  The case will largely determine whether policy-makers and legislators can pass laws that make it nearly impossible and impractical for women to undergo abortions.  These types of legislations place burdens on women that far exceed the state’s own interest in the matter. In order for a freedom to be practiced, it must not be impeded with burdens that make the freedom useless and hinder its purpose.  If the Supreme Court finds that the Texas law is constitutional, women who seek abortions will be forced to undergo additional delays and tests in order to gain access to a procedure that they are legally entitled to; a freedom that was recognized and legalized 43 years ago.

[1] Whole Woman's Health v. Hellerstedt, No. 15-274, 2016 WL 635871, at *1 (U.S. Feb. 18, 2016).

[2] Amy Hagstorm and Ricky Solinger, Restricted Abortion Rights Are a Calamity for All Women, Time (Jan. 20, 2016),

[3] Roe v. Wade, 410 U.S. 113 (1973).
[4] The “undue burden” standard was most notably used in Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833. It held that a “provision of law is invalid if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” (Id. at 837).
[5] Roe v. Wade at 154.
[6] Maher v. Roe, 432 U.S. 464 (1977).
[7] Id.
[8] Rust v. Sullivan, 500 U.S. 173 (1991).
[9] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833.
[10] Id. at 837.
[11] Id. at 838.
[12] Id at 841.

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