SCOTUSblog recently highlighted[1] a Volume 125 Feature[2] and a Volume 126 follow-up Forum Essay[3] by Linda Greenhouse and Reva B. Siegel to explain the implications of the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt.[4]

In their Feature published three months before the Court’s decision in Whole Woman’s Health, Greenhouse and Siegel clarified that both Roe v. Wade[5] and Planned Parenthood of Southeast Pennsylvania v. Casey[6] distinguished between “health-justified” and “fetal-protective” abortion regulations.[7] The Casey Court narrowed the strict rule in Roe by providing space for states to express a preference for fetal protection to women seeking abortions, so long as states’ persuasive efforts did not impose an “undue burden” on the right to abortion.[8] Greenhouse and Siegel observed that the “undue burden” standard attempted to reconcile the contemporary normative debate over abortion in the U.S. by “giv[ing] legal form to two values—potential life and the dignity of women.”[9]

In the period between Casey and Whole Woman’s Health, some circuit courts of appeal interpreted Casey’s “undue burden” standard to require highly deferential rational-basis review of states’ claims that abortion restrictions were health-justified. Other circuits, however, interpreted Casey to create a constitutional duty for courts to scrutinize such claims. Greenhouse and Siegel defended the latter view, contending that the dignitary nature of the “undue burden” standard required reviewing courts to independently examine the evidentiary bases for claims of health justification and evaluate whether regulatory burdens were actually justified by their benefits.[10]

The Whole Woman’s Health decision was largely consistent with this position. Reviewing a Texas statute that mandated abortion providers to take unnecessary and costly medical precautions, the Supreme Court scrutinized the evidence presented at the trial court, evaluated the burdens imposed on women seeking abortions in Texas, and invalidated the statute.  

In response to Whole Woman’s Health, Greenhouse and Siegel published an Essay on the Yale Law Journal Forum to disentangle the complex balancing framework applied by the Court and to argue that Whole Woman’s Health applies to not only health-justified but also fetal-protective regulations.[11] As SCOTUSblog notes, Greenhouse and Siegel expect major changes in the wake of Whole Woman’s Health due to renewed “constitutional doubt on a host of other types of abortion regulation.”[12]