Why the Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology—and Why It Matters
Casey adopted a new, interest-balancing framework for the right to elective abortion while preserving the core of that right. But by declining to address whether the right to elective abortion can be justified in interest-balancing terms, Casey opened the door to unduly stringent applications of the undue-burden standard and, no less importantly, to future extensions of the right. By ruling that the state’s interest in protecting pre-viable fetal life outweighs the woman’s interest in an elective abortion, while preserving that right on stare decisis grounds, the Court could ensure that the balance it struck in Casey—and that “was central to its holding”—is maintained and consistently enforced.
Stephen G. Gilles,
Why the Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology—and Why It Matters,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol91/iss2/5