Faculty Publications
 

Document Type

Article

Publication Date

2016

Excerpt

"In 1973, the Supreme Court, in Roe v. Wade, held that laws regulating abortion were subject to “strict scrutiny” because abortion was part of a woman’s fundamental “right to privacy.” Nineteen years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the kaleidoscope turned, and the Court held that laws regulating abortion were now subject to a less rigorous standard, pursuant to which such regulations would be unconstitutional only if they imposed an “undue burden” on a woman’s ability to make the abortion decision prior to fetal viability. Fifteen years after Casey, the colors shifted again in Gonzales v. Carhart, which held that a federal law banning “partial birth” abortions did not impose an undue burden on the right to abortion, even though the law did not contain a maternal health exception. The Carhart Court concluded, “Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. . . . The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.”3 With this statement, the Court appeared to embrace some degree of deference to laws regulating abortion, so long as the maternal health question was debatable or “uncertain”— a significant shift from Roe’s across-the-board strict scrutiny, and a further softening of judicial review from Casey’s “undue burden” standard."

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