Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice

Abstract

We offer a fresh understanding of how the Supreme Court's abortion jurisprudence addresses laws that invoke not potential life, but women's health as a reason to single out abortion for burdensome regulation that has the effect of closing clinics. The current wave of health-justified restrictions-including laws that require abortion providers to secure admitting privileges at nearby hospitals or to become the functional equivalents of hospitals themselves -is destroying the clinic infrastructure on which women depend in order to exercise their constitutional right to end a pregnancy.

How should judges evaluate the states' claims that such laws protect women's health? We argue that such laws must actually serve the ends claimed for them if they are not to circumvent constitutional limits on the means by which states can protect unborn life. Careful judicial scrutiny is essential to vindicate values at the core of the Court's decisions in Planned Parenthood of Southeastern Pennsylvania v. Casey and Gonzales v. Carhart.

We ground our argument in the principles of the undue burden standard as explained in Casey and applied there and later in Carhart. Casey modified Roe v. Wade to provide that from the beginning of pregnancy, states may protect two interests, unborn life and women's health. States may express a preference for childbirth by trying to persuade a woman, through a twenty-four hour waiting period and the provision of information, to forgo abortion. But states cannot express a preference for childbirth in ways that obstruct women from acting on their constitutionally protected choice.

Casey and Carhart allow the government to express respect for the dignity of human life by means that respect the dignity of women. Regulations that close clinics in the name of women's health, but without health-related justification, do not persuade: they prevent. In adopting such regulations, states - along with the courts that defer to them-violate the principle at the core of the Supreme Court's protection for the abortion right.