By John A. Robertson
Whole Woman’s Health v. Hellerstedt (WWH) is the most important abortion case since Casey in 1992, and a major setback for the anti-choice movement. By allowing courts to weigh the importance of the health benefits of a regulation, it will most likely invalidate most TRAP laws, which usually only marginally advance health while making it more difficult for women to access abortion. WWH, however, will not stop the anti-choice movement from pressing its fight against abortion in other ways. It now controls many state legislatures, and more legislation in areas left open by WWH may be expected.
Future health-related regulation will have to hew to the WWH line of providing real benefit, at least if substantially limits access to abortion. But close questions may still arise. What if a state has a valid health justification for a regulation that does limit access to abortion, as Jonathan Will notes would occur if a state law that directly promotes women’s health leads to that one clinic closing, as might occur in a state like Mississippi? Here there would be a substantial burden on access, but given the health benefit of the law, which interest should take priority? Neither Casey nor WWH are clear on this point. In my view the question will turn on how great is the health benefit from the requirement. A state, for example, should be able to close the only clinic in the state if it was as derelict as the Gosnell clinic. In that case, however, one could show serious danger to women’s health and life that would be comparable or even greater than the risk of childbirth. If the health benefit is less but still substantial, the question is harder. Such a situation would call into question whether the state itself must allow even a sub-standard abortion facility even when acceptable facilities exist across a state line. (See Jackson Women’s Health v. Currier.) Continue reading