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41 Harv. J.L. & Pub. Pol’y 719 (2018)


A law is 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."' Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, yet its contours remain elusive. Notably, two current members of the Court-Justice Breyer and Justice Kennedy-seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart, Justice Kennedy emphasized a wide range of permissible state interests implicated by abortion and indicated that courts should defer to States when they regulate in areas of medical uncertainty. According to Justice Kennedy, "[w]here [the State] has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power" to impose regulations "in furtherance of its legitimate interests. " More recently, Justice Breyer wrote in Whole Woman's Health v. Hellerstedt that Casey requires courts to "consider the burdens a law imposes on abortion access together with the benefits those laws confer" on pregnant women. Justice Breyer also opined that courts retain an active role in resolving questions of medical uncertainty and took a narrow view of permissible State interests. This decision maps onto the approach he took in authoring Stenberg v. Carhart," another of the Supreme Court's seminal abortion decisions. As a purely academic matter, these fundamentally conflicting interpretations of Casey are notable because of Justice Kennedy's co-authorship of that decision's joint opinion. Yet, the Court's alternative approaches have wide-ranging practical ramifications as well because they send radically different signals to state legislatures regarding the field of legitimate interests and the appropriate role of the courts in assessing legislation. Texas has recently brought this issue to the fore through its efforts to prohibit a particular type of second-trimester abortion procedure, which it calls a "live dismemberment abortion." Under Gonzales, the Texas law should easily pass constitutional muster: It invokes the same interests as those Gonzales held to be legitimate, leaves alternative abortion methods untouched, and regulates in an area of medical uncertainty. Yet, looking largely to Whole Woman's Health for guidance, the United States District Court for the Western District of Texas struck down the law as facially unconstitutional. This Article uses Texas's latest legislative attempt to explore the tension arising out of the Court's inconsistent treatment of state interests and the role of the courts in assessing legislative factfinding. Part I re-examines the principles laid out in the Supreme Court's four canonical abortion decisions since Roe v. Wade. It emphasizes the difference between Justice Breyer's and Justice Kennedy's approaches to applying Casey, culminating in Justice Kennedy's curious decision to join Justice Breyer's opinion (without comment) in Whole Woman's Health. Part II then describes the aforementioned Texas statute, Texas Senate Bill 8, and the district court's assessment of its constitutionality. It explains how this case demonstrates the inherent conflict between Gonzales and Whole Woman's Health and argues that the Texas law affords Justice Kennedy an apt vehicle to decide which interpretation of Casey should prevail. Specifically, it contends that challenges to laws such as Texas Senate Bill 8 would present the Court-and in particular Justice Kennedy-with the opportunity to reaffirm Gonzales and, in so doing, clarify the meaning and scope of Whole Woman's Health


Laura Wolk is a Notre Dame Law School 2016 graduate.



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