The Other Half of the Abortion Right

Abstract

Planned Parenthood v. Casey’s undue burden test provides that an abortion regulation will be unconstitutional if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Although Casey phrased the inquiry as a disjunctive two-pronged test—purpose or effect—courts and commentators alike have essentially ignored half of the test—the purpose prong—altogether. This is perhaps not surprising, given that Casey’s discussion of wrongful purpose was both cursory and seemingly incoherent. Commentators have long been mystified by the fact that Casey simultaneously precludes the states from enacting a law whose “purpose . . . is to place a substantial obstacle in the path of a woman seeking an abortion” and permits the states to enact “regulation[s] aimed at the protection of fetal life,” notwithstanding the fact that it would seem that every abortion restriction is designed to limit access to abortion in order to protect fetal life. Courts cannot build coherent doctrine around an incoherent premise, and they eventually give up trying. But, in an age in which hundreds of abortion restrictions are being enacted nationwide each year—many of which are demonstrably designed to cut back on abortion rights and access to abortion services—it is high time to revitalize the other half of the abortion right. This Article attempts to do just that—to provide a much needed theoretical and doctrinal framework for applying the maligned and too-often-ignored purpose prong of the undue burden test.