September 30, 2014

Most litigation over the constitutionality of abortion regulation has argued through the lens of “effect,” asking whether the regulation imposes, in the words of Planned Parenthood of Southeastern Pennsylvania v. Casey, an “undue burden on a woman’s ability to make th[e] decision to procure an
abortion.” This emphasis on the effect of abortion regulations overlooks the other prong of the undue burden test, a test which prohibits regulations on abortion that have either the “purpose or effect” of imposing an undue burden. A proper understanding of the purpose inquiry applicable to abortion regulations is integral to the unique form of intermediate scrutiny the Casey plurality substituted for strict scrutiny review and the trimester framework set out in Roe v. Wade. Unfortunately, though, the
Court was far from clear about the role the purpose inquiry in Casey was designed to serve, perhaps due to the evolving nature of liberty jurisprudence generally and instability in the tiers of review in particular.