GPO-CONAN-2017-10-15.pdf

629 in reviewing texass law the whole womans health

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facilities meet heightened health and safety standards. 629 In reviewing Texas’s law, the Whole Woman’s Health Court be- gan by clarifying the underlying “undue burden” standard estab- lished in Casey . First, the Court noted that the relevant standard from Casey requires that courts engage in a balancing test to deter- mine whether a law amounts to an unconstitutional restriction on abortion access by considering the “burdens a law imposes on abor- tion access together with the benefits those laws confer.” 630 As a consequence, the Whole Woman’s Health articulation of the undue burden standard necessarily requires that courts “consider the ex- istence or nonexistence of medical benefits” when considering whether a regulation constitutes an undue burden. 631 In such a consider- ation, a reviewing court, when evaluating an abortion regulation purporting to protect woman’s health, may need to closely scruti- nize (1) the relative value of the protections afforded under the new 626 550 U.S. at 160. 627 579 U.S. ___, No. 15–274, slip op. (2016). 628 Id. at 1–2. 629 Id. at 22. 630 Id. at 19. 631 Id. 1949 AMENDMENT 14—RIGHTS GUARANTEED
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law when compared to those prior to enactment 632 and (2) health regulations with respect to comparable medical procedures. 633 Sec- ond, the Whole Woman’s Health decision rejected the argument that judicial scrutiny of abortion regulations was akin to rational basis review, concluding that courts should not defer to legislatures when resolving questions of medical uncertainty that arise with respect to abortion regulations. 634 Instead, the Court found that reviewing courts are permitted to place “considerable weight upon evidence and argument presented in judicial proceedings” when evaluating legislation under the undue burden standard, notwithstanding con- trary conclusions by the legislature. 635 Applying these standards, the Whole Woman’s Health Court viewed the alleged benefits of the Texas requirements as inadequate to jus- tify the challenged provisions under the precedent of Casey , given both the burdens they imposed upon women’s access to abortion and the benefits provided. 636 Specifically as to the admitting privileges requirement, the Court determined that nothing in the underlying record showed that this requirement “advanced Texas’s legitimate interest in protecting women’s health” in any significant way as com- pared to Texas’s previous requirement that abortion clinics have a “working arrangement” with a doctor with admitting privileges. 637 In particular, the Court rejected the argument that the admitting privileges requirements were justified to provide an “extra layer” of protection against abusive and unsafe abortion facilities, as the Court concluded that “[d]etermined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.” 638 On the contrary, in the Court’s view, the evidentiary record suggested that the admitting-privileges requirement placed a substantial obstacle in the
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