Linda Greenhouse and Reva Siegel on Whole Woman's Health

Linda Greenhouse and Reva Siegel have posted their analysis of Whole Woman's Health v. Hellerstedt to SSRN.  The abstract follows:

This essay offers a brief account of the Supreme Court’s most recent abortion decision, Whole Woman’s Health v. Hellerstedt, and its implications for the future of abortion regulation. We draw on our recent article on health-justified abortion restrictions — Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428 (2016) — to describe the social movement strategy and the lower court rulings that led to the decision. We show that in Whole Woman’s Health the Court applies the undue burden framework of Planned Parenthood v. Casey in ways that have the potential to reshape the abortion conflict.

In Whole Woman’s Health, the Court insisted on an evidentiary basis for a state’s claim to restrict abortion in the interests of protecting women’s health, and found none in the Texas law under review. The Court instructed judges how to assess the asserted health benefits of regulations that predictably will force clinics to close: it required judges to balance the demonstrated benefit of the law against the burden that a shrunken abortion infrastructure will have on the ability of women to exercise their constitutional rights.

As we show, Whole Woman’s Health clarifies the law defining what counts as a burden and what counts as a benefit to be balanced within the Casey framework. Particularly notable, even unexpected, is the Court’s capacious understanding of “burden” as the cumulative impact of abortion regulation on women’s lived experience of exercising their constitutional rights. The decision thus offers a robust reaffirmation of the right to abortion and of the need for judges to protect access to the right. By clarifying what counts as a burden and what counts as a benefit to be balanced within the Casey framework, the decision constrains regulations explicitly aimed at protecting fetal life as well as those ostensibly intended to protect women’s health.