Abortion, the Undue Burden Standard, and the Eviscerations of Women’s Privacy
Caitlin E. Borgmann, 16 Wm. & Mary J. Women & L. 291 (2010)
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This Article is organized into three parts. Part I reviews the evolution of the constitutional right to privacy, from its articulation in cases involving parental decision-making, to contraception, to abortion. Part II canvasses the different facets of privacy implicated in the abortion decision – including belief and conscience, familial decision-making, medical decision-making, and bodily integrity – and reviews cases in which the Supreme Court has recognized or acknowledged these privacy interests. Part III describes how Casey’s undue burden standard, although protecting women’s ultimate right to choose abortion, has severely curtailed privacy protection for abortion, allowing regulations that invade all of these dimensions of abortion decision-making. The Article’s Conclusion suggests that, notwithstanding the widespread view that privacy as a basis for protecting abortion rights is passe (and was perhaps always ill-advised), a renewed focus on privacy, coupled with the newer formulations sounding in liberty or autonomy, and equality, would help ensure more robust protection of a woman’s right to terminate unwanted or untenable pregnancies.
