After Life: Governmental Interests and the New Antiabortion Incrementalism

In the aftermath of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, commentators have focused on the effect of antiabortion restrictions. But as this Article shows, Whole Woman’s Health is part of the story of an equally important tactic used by those chipping away at abortion rights: the recognition of new governmental interests justifying abortion regulations. Using original archival research, this Article traces the rise of this strategy and documents its influence on Supreme Court doctrine, making sense of what seem to be contradictory rulings on abortion. How should courts deal with novel legislative purposes or broader interpretations of existing ones?

The Court’s recent decision in Whole Woman’s Health clarified that courts must weigh the degree to which a statute delivers on the benefits it promises, but the Court raised as many questions as it answered. To better ground judicial analysis of governmental interests, this Article proposes a two-step approach. As an initial matter, states should have to articulate a claimed purpose with enough specificity that would enable courts to measure whether a law is succeeding. Then, in evaluating whether a law advances its stated goal, a court should consider: (1) whether a law addresses a measurable problem; (2) whether the law improves on the results achieved by previous policies; and (3) whether the law has some quantifiable (if not numerically specific) benefit.

Creating a framework with which to analyze any new purposes proposed by states to justify abortion regulations will provide more consistency, clarity, and coherence for legislatures and lower courts. The approach suggested in this Article will help ensure that the Court preserves the balance crafted by Planned Parenthood of Southeastern Pennsylvania v. Casey and Whole Woman’s Health.