Combined with the election of a Congress and President opposed to abortion, the Supreme Court’s most recent blockbuster abortion decision, Whole Woman’s Health v. Hellerstedt, has introduced unprecedented uncertainty into abortion jurisprudence. In a five-to-three decision, the Supreme Court not only struck down Texas’s HB2 but also significantly strengthened the undue burden test applied to any abortion regulation. The Court’s decision will force supporters of abortion restrictions to have more (and more convincing) evidence of the benefits and burdens created by a law to demonstrate its constitutionality. On the other hand, the election of Donald Trump sparked a wave of new antiabortion laws, many of which focused on protecting fetal dignity or fetal life. Will Whole Woman’s Health serve as a barrier to the new antiabortion regulations?
To get a sense of where the abortion debate is going next, this Article looks to the lost history of the undue burden test and the wars it has sparked over the facts of abortion. This history illuminates several dangers that may face supporters of abortion rights in spite of the sweeping victory in Whole Woman’s Health. First, the procedural protections put in place for women making a factual case for abortion access have since transformed into obstacles. For example, judicial bypass, the protection created for minors proving facts about their families and maturity, soon became one of the stumbling blocks for younger women seeking to terminate their pregnancies. Second, factual arguments rejected by the courts and by expert bodies had, and may once again have, a surprising political afterlife. Raised in the context of the undue burden test, arguments about the psychological and physical harm that abortion caused in women often did not convince the courts, or even an antiabortion Surgeon General. Nevertheless, because these arguments eventually caught on politically, politicians and judges began concluding that the answer to factual questions was simply too unclear for the courts to strike down abortion restrictions.
In the context of the undue burden test, what appear to be factual questions are in fact terms of art. Scientific uncertainty, a term that figures centrally in Gonzales v. Carhart, requires more definition from the Court. Rather than simply clarifying that the undue burden test requires a balancing of the benefits and burdens of an abortion law, the Court should offer more guidance about how lower courts can reach a factual conclusion about the questions of health and access surrounding abortion. Carhart allows lawmakers to regulate abortion when a scientific or medical question remains uncertain but does not explain what gives rise to uncertainty in the first place. Indeed, the Court sometimes seems to treat a matter as uncertain when there is a strong scientific consensus but the mere possibility of future harm cannot be ruled out.
Uncertainty of this kind is an inevitable feature of scientific inquiry, no matter how well established a theory has become. Instead of recognizing uncertainty whenever a fact could change or be disproven, the Court should instead establish that uncertainty comes into play only if a factual proposition cannot be established by a preponderance of the evidence. Defining uncertainty differently will effectively give legislators the ability to regulate abortion at will. Such a result obviously stands in tension with the balance that Planned Parenthood of Southeastern Pennsylvania v. Casey created.
