The Fourteenth Amendment’s Substantive Due Process Clause is a powerful sword that protects certain rights and liberties. Most of these non-fundamental rights are examined underneath the “rational basis” standard of constitutional review. Despite being a right protected underneath the Substantive Due Process Clause, abortion stands alone in using a unique form of constitutional review: Planned Parenthood v. Casey’s “undue burden” standard.
The striking down of Roe v. Wade’s trimester analysis, and the subsequent creation of the “undue burden” standard, resulted in a catastrophic tidal wave of targeted regulations against abortion providers (TRAP laws). One such TRAP law, House Bill 2 (H.B. 2), was challenged. The resulting lawsuit, Whole Woman’s Health v. Hellerstedt, declared that H.B. 2 was unconstitutional, using an analysis that diverged from standard abortion jurisprudence.
This Note examines the Court’s history of Substantive Due Process jurisprudence, contrasting abortion with other non-fundamental rights and liberties. It posits that the Substantive Due Process Clause not only should have been used all along to defend the constitutional right to access safe and legal abortion, but the Court’s latest examination of abortion in access provides a strengthened form of review to judge abortion restriction: “undue burden with ‘bite.’”
So long as this Court adheres to Roe v. Wade . . . and Planned Parenthood of Southeastern Pennsylvania v. Casey . . ., Targeted Regulation of Abortion Providers laws like H.B. that ‘do little or nothing for health, but rather strew impediments to abortion,’ . . . cannot survive judicial inspection.
Chelsea M. Donaldson, CONSTITUTIONAL LAW/REPRODUCTIVE JUSTICE—BREAKING THE TRAP: HOW WHOLE WOMAN’S HEALTH PROTECTS ABORTION ACCESS, AND THE SUBSTANTIVE DUE PROCESS CLAUSE’S REBUKE OF ANTI-ABORTION REGULATIONS, 40 W. New Eng. L. Rev. 257 (2018), https://digitalcommons.law.wne.edu/lawreview/vol40/iss2/4