Sparked by the unprecedented number of reproductive healthcare restrictions proposed and enacted by state governments from 2010 to 2014, this Note seeks to document the troubling trend and varying manifestations of legislation premised on unsound scientific evidence and purportedly enacted to advance states' recognized interests in protecting women's health and potential life. Such legal restrictions take many forms and are divided into four categories for the purpose of this paper: (1) Targeted Regulation of Abortion Providers, or TRAP laws; (2) Fetal Protection Laws that criminalize the behavior of pregnant women; (3) Fetal Protection Laws that impose complete bans on abortion access at a certain stage of fetal development; and (4) Informed Consent Laws. After profiling the common forms of such laws, the flawed scientific evidence advanced in support of these restrictions, and the multiple harms inflicted on women and families, the physician-patient relationship, and the integrity of our legal system, this paper ultimately proposes and explains the proper framework for judicial review of rights restricting legislation. Juxtaposing trial courts' inherently superior fact-finding abilities with legislatures' political proclivities and shortcomings in this regard, this paper endorses decreased deference to legislative fact-finding, and an inquiring and scrutinizing standard of review for rights-restricting legislation that considers (1) the validity of the interest expressed, (2) the tailoring of the restriction with regard to over-inclusive or under-inclusive advancement of the interest, and (3) the rational relation between the interest claimed and the restriction proposed.
Samanta von Ende, SEQUELA: Casey, Gonzales, and State Legislatures' Unscrupulous Use of Science in Crafting Legislation to Regulate Pregnant Women and Women's Access to Reproductive Health, 4 Ind. J. of L. and Soc. Equality 21 (2016).