Fulfilling the Promise of \u3ci\u3eRoe\u3c/i\u3e: A Pathway for Meaningful Pre-Abortion Consultation

In Whole Woman’s Health v. Hellerstedt, the U.S. Supreme Court struck down regulations that it believed would inhibit a woman’s ability to receive meaningful personal consultation and support before choosing to have an abortion. The Court thus echoed what it had emphasized in Roe v. Wade more than 40 years earlier—that an abortion decision would follow an extensive discussion between a woman and her physician. An ob/gyn who provides a woman with regular care likely is best equipped to offer this type of consultation, but most ob/gyns do not perform abortions, and there is evidence that physicians who perform abortions do not always engage in robust dialogue with the women whom they see for that purpose. In light of these realities, this article suggests that states adopt measures to facilitate consultation by a woman considering abortion with a physician whom she has chosen to provide her with comprehensive care. The article proposes model legislation designed both to achieve this end and to respect a woman’s constitutional rights

Can the State Proclaim Life After Death? Hellerstedt and Regulating the Disposition of Fetal Remains

The United States Supreme Court dealt a significant blow to abortion opponents in Whole Woman’s Health v. Hellerstedt, but the 2016 ruling did not dampen their resolve. Just days after Texas lost the Hellerstedt battle, the Texas Department of State Health Services (DSHS) returned to the fight and proposed regulations requiring health care facilities to inter or cremate the remains of aborted and miscarried fetuses. Undeterred by a preliminary injunction entered against those regulations once they became final, the Texas legislature enacted a law with similar effect in June 2017. The Texas law, however, proved to be good ground for yet another victory for those who advocate choice. Having already found the DSHS regulations wanting, the United States District Court for the Western District of Texas enjoined the new statute, concluding that it was unlikely to survive the undue burden test that the Supreme Court set out in Planned Parenthood of Southeastern Pennsylvania v. Casey. The United States Court of Appeals for the Seventh Circuit has now followed suit with respect to an Indiana law regulating the disposition of fetal remains. But rather than applying Casey’s undue burden test, the appeals court determined that the Indiana statute could not survive even the very deferential rational basis standard of review. Importantly, the decisions of both the Texas district court and the Seventh Circuit conflict with a 1990 decision of the United States Court of Appeals for the Eighth Circuit to uphold a Minnesota fetal remains disposition law—in a case tried before Roe v. Wade’s demanding trimester framework gave way to Casey’s more lenient undue burden standard. Thus, three federal courts are now in conflict, and the Supreme Court may need to step in yet again to decide who is right. Unfortunately, Hellerstedt provides no easy answer to the question of whether fetal remains disposition requirements like those enacted in Texas and Indiana can survive constitutional challenge. The Texas legislation at issue in Hellerstedt purportedly advanced the state’s interest in safeguarding maternal health, and thus one questions how the Hellerstedt Court’s interpretation of Casey’s undue burden standard will apply to abortion regulations that are founded on the state’s interest in protecting potential life. What is certain, though, is that the Hellerstedt Court did not overrule its decision either in Casey or in Gonzales v. Carhart, both of which upheld measures aimed at encouraging a woman to choose childbirth over abortion. This Article thus contends that, when viewed in light of Casey and Gonzales, Hellerstedt’s interpretation of the undue burden test leaves states with a great deal of latitude to regulate abortion in a manner aimed at protecting potential life. As a result, efforts to regulate the method of disposing of fetal remains should pass constitutional muster

A Costly Victory: June Medical, Federal Abortion Legislation, and Section 5 of the Fourteenth Amendment

The United States Supreme Court’s recent major abortion ruling in June Medical Services L.L.C. v. Russo was a win for abortion rights supporters, but a costly one. Although the June Medical Court struck down a Louisiana law requiring abortion doctors to have admitting privileges at a local hospital, a majority of the Justices—and most importantly, Chief Justice Roberts, whose concurrence constitutes the Court’s holding—stressed that Casey’s constitutional standard for pre-viability abortion regulations is not the amorphous balancing test the Court suggested in Whole Woman’s Health v. Hellerstedt, but a more deferential one under which a pre-viability regulation typically will be sustained if it does not place a substantial obstacle in the path of a woman seeking an abortion before viability

Fulfilling the Promise of \u3ci\u3eRoe\u3c/i\u3e: A Pathway for Meaningful Pre-Abortion Consultation

In Whole Woman’s Health v. Hellerstedt, the U.S. Supreme Court struck down regulations that it believed would inhibit a woman’s ability to receive meaningful personal consultation and support before choosing to have an abortion. The Court thus echoed what it had emphasized in Roe v. Wade more than 40 years earlier—that an abortion decision would follow an extensive discussion between a woman and her physician. An ob/gyn who provides a woman with regular care likely is best equipped to offer this type of consultation, but most ob/gyns do not perform abortions, and there is evidence that physicians who perform abortions do not always engage in robust dialogue with the women whom they see for that purpose. In light of these realities, this article suggests that states adopt measures to facilitate consultation by a woman considering abortion with a physician whom she has chosen to provide her with comprehensive care. The article proposes model legislation designed both to achieve this end and to respect a woman’s constitutional rights