In Planned Parenthood v. Casey in 1992, the Court held that states cannot enact laws that put an “undue burden” on women seeking an abortion. The opinion, authored in part by Justice Kennedy, said there is an undue burden when “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” Whole Woman’s Health could clarify when a state creates an undue burden and, in particular, whether a court must consider the reasons the state purportedly enacted the law, in addition to the difficulty a woman faces in obtaining an abortion. If the Court were to hold that a state’s motives in passing a law are irrelevant, a state could enact laws that do nothing to promote health or safety and are intended to make it more difficult to get an abortion. (There is ample evidence that the legislature intended to prevent women from being able to get abortions when they passed HB2.) Allowing states to intentionally block women from exercising their fundamental right to abortion would profoundly weaken that right.
Ms. Toti explained that both of these are vital considerations. By considering both, the Court can ensure that states are free to enact laws that protect women from unsafe conditions, but are prohibited from enacting laws that have no justification other than making abortions harder to obtain. Notably, Ms. Toti wasn’t able to address this core question of the case until well into the argument, so the Court allowed both sides additional time to make their cases.
When Solicitor General Verrilli addressed the Court on behalf of the United States, he also urged the Court to look at both the effect the law will have and the state’s justifications for regulating abortion. “Undue means excessive or unwarranted,” General Verrilli explained. But he added that even if the Court chooses to look only at the additional obstacles to abortion that a law creates, HB2 should still fail.