Respecting Legislators and Rejecting Baselines: Rebalancing Casey

INTRODUCTION In the last three years state legislatures have written and passed a torrent of abortion regulations across the United States. (1) These laws have come as pro-life politicians have taken control of many states' legislatures and executive offices. (2) Other contributing factors in this trend may include an increased number of people who define themselves as pro-life (3) and the exposure of bad actors within the abortion industry whose practices have led some to question the safety of current abortion practices. (4) Needless to say, many states have entered a bold era of regulations of abortion facilities, driving the market price for an abortion in many states to a level that puts many clinics out of business. (5) Pro-life legislators and policymakers have developed and passed a variety of regulations, including stricter building codes for abortion clinics, (6) hospital admitting privilege requirements for abortion practitioners, (7) increased waiting periods, (8) and restrictions on the use of medical abortions. (9) Judicial responses to these regulations have been mixed, though largely negative. (10) Despite the diversity of state abortion regulations, these laws are subject to scrutiny under the standard set forth in Planned Parenthood of Southeast Pennsylvania v. Casey. (11) Scholars and judges on all sides of the abortion issue view the undue burden standard developed in Casey as fraught with ambiguity and uncertainty, with an untold number of law review articles, cases, and books attempting to interpret it. (12) Perhaps because of the contentious nature and stakes of interpreting this standard, no consensus has arisen to allow for a unified understanding of what "undue burden" means. (13) As a result, judges' and justices' attempts at utilizing the undue burden standard have been erratic, often yielding conflicting results from state to state and circuit to circuit. (14) The Supreme Court has done little to clarify its previous holdings in this matter. (15) This Note will investigate ways in which judges analyze the cost and accessibility of abortion services after implementation of these new state regulations in determining whether the new regulations constitute an undue burden. In the absence of a clear Supreme Court ruling that defines what constitutes an "undue burden" under these new regulations, judges are forced to determine inconsistent "baselines" of cost and accessibility that constitute a misreading of Casey. For example, a judge may reason that a certain number of women are likely to seek abortions in the coming year in their state, and that a certain percentage of those will not end up being able to access that service if a regulation goes into effect. The number of potential abortions may decrease in response to increased cost of abortions--determined in light of travel time to alternate states or locations for abortion services, or other barriers that deter a woman from seeking an abortion. The judge then makes a determination of whether that interference is "undue." What results is an arbitrary ruling based on hypothetical percentages: while one judge might find that a twenty percent decrease in the number of abortions means the regulation is constitutional because it does not impose an undue burden, another judge might estimate that a similar regulation will result in a sixty percent decrease in the number of abortions and therefore is an undue burden. This Note will refer to these judicial estimates as "baselines," which is an appropriate term because judges often treat the number of clinics or number of abortions that occur in a state at a given time as a kind of benchmark from which they are not willing to depart. The fundamental issue with this trend is that restricting access to abortion itself does not necessarily constitute an undue burden. As this Note will show, the current market demand for abortions in a particular state should not drive the Casey undue burden standard. …