Roe v. Wade — A Fundamental Right to Reproductive Autonomy? — 7/25/17

In the abortion debate, Roe v. Wade is regularly cited as the cornerstone of pro-choice policy. In fact, Roe is merely one piece of a complex array of cases establishing the fundamental right to reproductive autonomy.

This week we’ll not only look at Roe, but also the steps that came before and after. The goal is to gain some understanding of what is (and isn’t) protected, and discuss whether we think the existing approach is the right one.

The analysis will be broken down as follows:

(1) What is a fundamental right?

(2) Roe v. Wade (1973) — the fundamental right to reproductive autonomy and the trimester framework

(3) Planned Parenthood v. Casey (1992) — the undue burden test

(4) Whole Woman’s Health v. Hellerstedt (2016) — applying the undue burden test


*Note: this post is based in part on readings and discussions from Bertrall Ross’s Constitutional Law class at UC Berkeley Law School.

(1) What is a Fundamental Right?

The label “fundamental right” carries inherent power— if a right is fundamental, it is, by definition, very important. So it’s not surprising that the phrase is often used in circular arguments — e.g., the choice to reproduce must be protected because it is a fundamental right, and as a fundamental right, it must be protected because it is fundamental.

The “legal” definition is not a whole lot more substantive, but it does provide some context. Specifically, “fundamental right” is shorthand for the “fundamental right to privacy,” as protected under the Due Process Clause of the 14th Amendment. Compared to the Equal Protection Clause that we discussed a while back, the Due Process Clause is the first half of the same sentence in the 14th Amendment.

The Due Process Clause provides:

“No state shall . . . deprive any person of life, liberty, or property, without due process of law.”

The Supreme Court has defined “liberty” here as protecting:

“matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, . . . the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood v. Casey, 505 U.S. 833 (1992).

As you can see, the Court is heavy on flair, light on substance. Thus, fundamental rights has become a sort of catch-all, where any right the Court deems to be “fundamental” cannot be denied absent a strong government reason.

(2) Roe v. Wade (1973)

Roe v. Wade established a trimester-based framework for determining when and how abortion can be restricted. Though this approach is long defunct, Roe remains a beacon for pro-life protests because it was the first Supreme Court case to recognize abortion as eligible for constitutional protection.

Take Aways

(a) The fundamental right of privacy includes a woman’s decision whether or not to terminate her pregnancy.

(b) That right is NOT absolute, but must be balanced against the compelling state interest in protecting prenatal life.

(c) The Court comes up with a trimester-based solution:

1st Trimester: States CAN’T proscribe abortion.

  • The mother’s privacy rights outweigh any state interests.
  • Rationale: abortion mortality is lower than childbirth mortality before the end of the first trimester.

2nd Trimester: States can ONLY proscribe abortion to protect the mother’s health.

  • State interests in the mother’s health outweigh the mother’s privacy interests.

3rd Trimester: States CAN proscribe abortion (with an exception for the mother’s health).

  • State interests in the fetus’s potential life outweigh the mother’s privacy interests.
  • Rationale: the fetus is now considered “viable,” meaning it can survive outside the womb.

Among other complaints, Roe was criticized for being too rigid and unable to keep pace with scientific advancements. For example, the Court’s logic no longer holds water now that later term abortions are also less risky than childbirth.

(3) Planned Parenthood v. Casey (1992)

Roe’s trimester framework was superseded by Planned Parenthood v. Casey, which established a new “undue burden” test.

Take Aways

(a) (Affirms Roe) The fundamental right of privacy includes a woman’s decision whether or not to terminate her pregnancy.

(b) (Affirms Roe) That right is NOT absolute, but must be balanced against the compelling state interest in protecting prenatal life.

(c) The Court comes up with a new balancing test:

Before Viability: State can regulate abortion ONLY if the regulation does NOT impose an “undue burden” on a woman’s ability to make the decision to terminate.

After Viability: State CAN proscribe abortion (with an exception for the mother’s health).

(4) Whole Woman’s Health v. Hellerstedt (2016)

Instead of reading this case, we’ll take a look at the facts and discuss (1) how we think the undue burden test should apply here, and (2) general thoughts on the Court’s approach.

Relevant Facts

  • A Texas House bill required abortion clinics to have: (1) physicians with admitting privileges at a hospital within 30 miles of the clinic; (2) equivalent facilities as required for ambulatory surgical centers.
  • Hospital admitting privileges generally require the physician provide a minimum number of patients.
  • Abortion complication rates are very low, thus few patients require hospitalization.
  • Other procedures with higher mortality rates than abortion do not require surgical center level facilities. E.g., colonoscopy (10x higher mortality rate).
  • Abortions do not carry high risk of infection (skin is not broken), nor require heavy sedation.
  • The cost of bringing an average abortion clinic up to surgical center standards was estimated at $1–1.5M.
  • Prior to the bill’s enactment, Texas had over 40 licensed abortion facilities. The admitting privileges requirement reduced those numbers by almost half. The surgical center requirements left only 7 or 8.
  • The remaining 7 or 8 facilities were unable to meet the existing demand for abortion services in Texas.


(a) Do either or both components of the Texas bill impose an undue burden on a woman’s decision to terminate her pregnancy? Why or why not?

(b) Do you like the undue burden test? Specifically, think about how the test might apply to different facts, and whether it provides enough guidance to yield principled results.

(c) How would you change the Court’s approach to abortion rights, if at all?