The Structure of Planned Parenthood v. Casey Abortion Rights Law: 'Strict Scrutiny' for 'Substantial Obstacles' on Abortion Choice and Otherwise 'Reasonableness Balancing'

65 Pages Posted: 3 Oct 2015 Last revised: 13 Oct 2020

See all articles by R. Randall Kelso

R. Randall Kelso

South Texas College of Law Houston

Date Written: July 1, 2015

Abstract

Following the 2010 elections, a spate of new abortion restricting laws were passed. Many government actions have been held unconstitutional by courts. A number of these cases have involved challenges to statutes requiring abortion clinics to have admitting privileges at a local hospital. In deciding what the correct approach is to abortion regulation, Part II of this article discusses the legal doctrine adopted by the Supreme Court in Roe and Casey. That discussion shows that the best reading of Casey is that it adopted a doctrine whereby an “undue burden” on abortion choice, defined as a “substantial obstacle to a woman seeking an abortion,” triggers Roe’s strict scrutiny approach, while a “less than undue burden” on abortion choice triggers a “reasonableness balancing” approach higher than “minimum rationality review.” Part III of this article supports this analysis by careful attention to the application of the “undue burden” analysis in Casey to the spousal notification, informed consent, and 24‐hour waiting period regulations at issue in the case.

Part IV of this article expands on this discussion to note how the joint opinion’s reference in Casey to its “undue burden” analysis tracking the Supreme Court’s doctrine in the “ballot access” cases, like Anderson v. Celebrezze, strongly supports use of a “reasonableness balancing” test higher than minimum rationality review. Part IV also notes how this Casey/Celebrezze approach is mirrored in a range of other fundamental rights cases, where substantial burdens trigger strict scrutiny, and less than substantial burdens trigger a "reasonable balancing” test higher than “minimum rationality review.” Part V discusses how Gonzales v. Carhart, the Supreme Court’s last major abortion rights case, is consistent with this analysis and does nothing to change the Casey/Celebrezze “reasonableness balancing” doctrine.

In light of this doctrinal structure, Part VI of this article analyzes a number of recent district court and court of appeals cases involving abortion rights. Part VII places this Casey/Celebrezze “reasonableness balancing” approach in the context of the Supreme Court’s general doctrinal approach to individual rights adjudication, with a brief comparison of this approach to analysis used in many constitutional courts around the world of “proportionality” review.

Suggested Citation

Kelso, R. Randall, The Structure of Planned Parenthood v. Casey Abortion Rights Law: 'Strict Scrutiny' for 'Substantial Obstacles' on Abortion Choice and Otherwise 'Reasonableness Balancing' (July 1, 2015). 34 Quinnipiac Law Review 76 (2015), Available at SSRN: https://ssrn.com/abstract=2668322

R. Randall Kelso (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-1837 (Phone)

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