Federal Litigation

Griswold v. Connecticut

The foundations of Roe v. Wade, which ruled that laws criminalizing abortion were unconstitutional, can be found in the Supreme Court’s earlier decision of Griswold v. Connecticut. The Court’s inquiry dealt directly with Section I of the Fourteenth Amendment, which outlines protections extended to all US citizens:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Beginning with Griswold in 1965, the Due Process Clause of the Fourteenth Amendment has been interpreted by the Court to protect most of the rights found in the Bill of Rights, in addition to some that are not specifically listed in the Constitution. These additional rights, among them the right to privacy, have been found to be fundamental rights that cannot be infringed by federal or state governments. The right to privacy was established in Griswold, which concerned a Connecticut law banning the sale of contraception. The Court ruled that the law was unconstitutional because it infringed upon the fundamental right of married couples to make intimate decisions regarding procreation.

Justice John Marshall Harlan, who wrote a concurrence in Griswold, expressed the Court’s logic in locating fundamental rights beyond those explicitly enumerated in the Constitution:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points priced out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints … and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.

Roe v. Wade

Beginning in the mid-1800s, states began to regulate and outlaw abortions, a practice that had gone largely unrestricted before this time. Prior to the Supreme Court’s Roe v. Wade ruling in 1973, 30 states had outright bans on abortion, several others had exceptions for the mother’s health or in the case of rape, and four allowed abortions to be performed upon request. Roe was a legal challenge to Texas laws that restricted access to abortions. The Court’s ruling in Roe held that a woman’s right to choose to have an abortion was a “fundamental right” that was protected under their right to privacy pursuant to the Fourteenth Amendment Due Process Clause.

Public opinion regarding the right to choose abortion remains polarized almost 40 years after the Court’s decision. A few states have enacted so-called “trigger laws” that would automatically ban abortion in the event that the precedent of Roe is ever overturned. Those who are in favor of abortion rights, including Supreme Court Justice Ruth Bader Ginsburg, have staunchly opposed the idea of overruling the decision based, in part, on the idea that rescission of a woman’s right to choose an abortion would disproportionately harm poor women who could not afford to circumvent the law by traveling to permissive jurisdictions. Congressional legislators even attempted to codify protection of abortion rights through the Freedom of Choice Act in April 2007.

Roe was decided on the same day as Doe v. Bolton, wherein the Court overturned a Georgia statute that restricted abortion procedures to cases of rape, severe fetal deformity or the possibility of severe or fatal injury to the mother.

Planned Parenthood v. Casey

In Roe, the Court determined that abortion rights should be evaluated so as to protect the “fundamental right” of both a woman’s right to choose and a physician’s right to select a course of medical treatment. In June 1992, the Supreme Court ruled in Planned Parenthood of Pennsylvania v. Casey that the state could regulate abortion so long as those restrictions did not create an “undue burden.” While this new standard ultimately reaffirmed a woman’s right to terminate her pregnancy, it established that a state could not impose “undue burdens” upon a woman’s ability to make that decision. However, the ruling afforded states greater latitude to encourage women to carry their pregnancies to term. According to the Court, the state’s interests are not strong enough to completely ban abortions before a fetus reaches “viability.” But the state’s interest in limiting abortions increases after viability, justifying greater burdens on the women’s right to choose an abortion.

The Court’s decision in Casey has been interpreted as banning the state from imposing unnecessary health regulations that put a “substantial obstacle” in the way of a woman’s choice to have an abortion. The ruling specifically struck down a law requiring a woman to notify her husband of her decision to have an abortion as an undue burden because it had a greater impact on the pregnant woman’s bodily integrity than it would on the husband’s potential parental rights. However, the Court specifically stated that an “informed consent” requirement did not qualify as such an undue burden, nor did parental notification laws. The Court ruled that requiring a woman to be fully informed of the availability of information regarding the physical consequences to the fetus does not interfere with the woman’s right to privacy. The ultimate legal result of Casey is that states may implement restrictions on abortion services so long as those regulations do not put substantial obstacles in the way of a woman’s right to choose to have an abortion.

Whole Woman’s Health v. Hellerstedt
The standard set forth in Casey allows restrictions on abortion services that do not unduly burden a women’s right to seek an abortion. The Supreme Court elaborated on this rule in its June 2016 decision in Whole Woman’s Health v. Hellerstedt, holding that in considering whether a measure presents a “substantial obstacle” to the availability of abortion services, courts should take into account the extent to which the measure at issue serves the government’s interest in protecting women’s health.
The Whole Woman’s Health petitioners challenged H.B. 2, a Texas law that contained provisions that restricted access to abortions by requiring that all physician providers have admitting privileges at a hospital within 30 miles of the clinic, and that all abortion clinics meet the standards for ambulatory surgical centers. In determining whether these provisions furthered women’s health, the Court did not give the legislature’s fact-finding complete deference but also considered the evidence presented by petitioners. The record supported a finding that, although the measures resulted in the closing of about half of the State’s abortion providers, they did not lower risks or provide greater health protections than the measures already in place. Because the restrictions did not sufficiently further the purported government interest, the Court held that the law presented an undue burden on the right to seek an abortion and was therefore unconstitutional.
Because Whole Woman’s Health requires the government to show that a measure actually achieves the stated goal, the standard set forth in the decision may serve as a basis to challenge not only laws that mandate ambulatory standards and admitting privileges but also other types of abortion restrictions.