The 2016 United States Supreme Court term includes one of the most important abortion rights cases in a generation. For the first time since 1992, Whole Woman’s Health v. Hellerstedt puts the question of the proper constitutional standard for regulations on abortion squarely before the Court – but with an eight-member court, it is possible that there will be no clear resolution.
The United States Supreme Court has recognized the constitutional right to choose to terminate a pregnancy, as part of the constitutional right to privacy, since 1973. In Roe v. Wade, the Court held that this right was fundamental and therefore any law infringing upon that right should be viewed with strict scrutiny.
In Planned Parenthood v. Casey in 1992, the Court revisited its approach in Roe and created a new standard for evaluating restrictions on abortion – the “undue burden” standard, which does not exist in this form in any other area of constitutional law. For the past 24 years, lower federal courts across the United States have struggled with the application of this standard, reaching divergent conclusions when evaluating restrictions on abortion, even when faced with similar facts.
Although Casey affirmed the core principles of Roe, including that there is a constitutional right to choose to end a pregnancy, the fact that the “undue burden” standard permits some level of additional regulation opened the floodgates for conservative lawmakers to introduce a deluge of new restrictions on abortion. Anti-abortion advocates began developing model legislation and conservative lawmakers in a small but growing number of states got it passed. By 2007, when the Court upheld the so-called Partial Birth Abortion Ban Act in Gonzales v. Carhart, hundreds of other restrictions had become law; many were struck down by courts while others were upheld or went unchallenged.
In Whole Woman’s Health, the Court has been asked directly whether certain restrictions on the provision of abortion care (requiring the physician who performs the abortion to have privileges to admit a patient to a hospital, and requiring any abortion to be performed in an ambulatory surgical center), which will close down almost all of the abortion clinics in Texas, impose an undue burden on a woman’s right to choose. The Court’s answer may shape access to abortion for women across the United States for the next generation.
This course, presented by Jordan Goldberg, Senior Policy Advisor at the National Institute for Reproductive Health, reviews the constitutional law on abortion rights leading up to Whole Woman’s Health v. Hellerstedt, address the Court’s decision, and offers some conclusions about the implications of the decision for access to abortion in the United States today.
I. Understand the constitutional right to terminate a pregnancy prior to Whole Woman’s Health
II. Become familiar with the range of restrictions imposed on access to abortion in the years between Roe and 2016
III. Understand how the Whole Woman’s Health decision changed the constitutional standards for abortion rights
IV. Assess the potential for further restrictions on abortion in light of the decision
Jordan Goldberg is Senior Policy Advisor at the National Institute for Reproductive Health, where she works with both state and national partners to promote proactive reproductive health policy in the states. Before joining NIRH, Jordan was State Advocacy Counsel at the Center for Reproductive Rights, where she oversaw the state legislative program, tracking and analyzing reproductive health related legislation across the country, providing technical assistance to advocates and partners in the states, and working with national and state partners to develop strategies to defeat harmful legislation and promote proactive legislation. Jordan clerked for the Honorable Barry T. Albin of the New Jersey Supreme Court, and prior to law school worked on political campaigns and in communications for non-profit organizations. Jordan received her J.D. from Fordham University School of Law and a BFA in Film and Television from New York University, with a second major Politics.
Excellent presentation. I learned a lot that I did not know on this subject.
Love the note slides that accompanied the video.
This was a very thorough discussion on relevant reproductive issues for women. I think this should be a mandatory CLE!
Learned a lot of insight in how the law works in this area.
Thank you for offering courses on important and diverse topics. I hope to see more courses by this instructor.
This was possibly the most interesting CLE hour I've ever gotten. She did a great job at walking through the history of abortion cases!
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