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Abstract

The United States Supreme Court dealt a significant blow to abortion opponents in Whole Woman’s Health v. Hellerstedt, but the 2016 ruling did not dampen their resolve. Just days after Texas lost the Hellerstedt battle, the Texas Department of State Health Services (DSHS) returned to the fight and proposed regulations requiring health care facilities to inter or cremate the remains of aborted and miscarried fetuses. Undeterred by a preliminary injunction entered against those regulations once they became final, the Texas legislature enacted a law with similar effect in June 2017.

The Texas law, however, proved to be good ground for yet another victory for those who advocate choice. Having already found the DSHS regulations wanting, the United States District Court for the Western District of Texas enjoined the new statute, concluding that it was unlikely to survive the undue burden test that the Supreme Court set out in Planned Parenthood of Southeastern Pennsylvania v. Casey.

The United States Court of Appeals for the Seventh Circuit has now followed suit with respect to an Indiana law regulating the disposition of fetal remains. But rather than applying Casey’s undue burden test, the appeals court determined that the Indiana statute could not survive even the very deferential rational basis standard of review. Importantly, the decisions of both the Texas district court and the Seventh Circuit conflict with a 1990 decision of the United States Court of Appeals for the Eighth Circuit to uphold a Minnesota fetal remains disposition law—in a case tried before Roe v. Wade’s demanding trimester framework gave way to Casey’s more lenient undue burden standard. Thus, three federal courts are now in conflict, and the Supreme Court may need to step in yet again to decide who is right.

Unfortunately, Hellerstedt provides no easy answer to the question of whether fetal remains disposition requirements like those enacted in Texas and Indiana can survive constitutional challenge. The Texas legislation at issue in Hellerstedt purportedly advanced the state’s interest in safeguarding maternal health, and thus one questions how the Hellerstedt Court’s interpretation of Casey’s undue burden standard will apply to abortion regulations that are founded on the state’s interest in protecting potential life. What is certain, though, is that the Hellerstedt Court did not overrule its decision either in Casey or in Gonzales v. Carhart, both of which upheld measures aimed at encouraging a woman to choose childbirth over abortion. This Article thus contends that, when viewed in light of Casey and Gonzales, Hellerstedt’s interpretation of the undue burden test leaves states with a great deal of latitude to regulate abortion in a manner aimed at protecting potential life. As a result, efforts to regulate the method of disposing of fetal remains should pass constitutional muster.

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