Golden Gate University Law Review


This Note addresses the limited impact of the Ninth Circuit’s holding in Planned Parenthood Arizona, Inc. v. Betlach, especially for women living in states hostile to abortion rights. These legislative attempts to infringe on a woman’s right to an abortion are based on opinion and emotion, not reason and common sense. An objective view of the legislation stacked against a woman in exercising her right, including legislation against physicians who provide the service, illustrates how all of these obstacles have effectively become a wall. A woman’s constitutional right should not continue to be chipped away, one state statute at a time, until there is no real choice to a woman’s right to an abortion. Moreover, this type of legislation falls hardest on women and families who cannot afford access to alternative care. If and when there are no physicians or clinics available to perform legal abortions, then the state has effectively made the woman’s choice for her. It is indisputable that a right is not a right at all if it cannot be exercised.

This Note argues for a revival of the Casey Test. The test should be applied to statutes as a whole, asking whether the purpose or effect of a statute places a substantial obstacle in the path of a woman in exercising her legal right to choose to terminate her pregnancy before viability. Part I of this Note looks into the legal and procedural background of Betlach, including all of the plaintiffs’ original claims and the decision’s limited impact. Part II analyzes how the legislation in Betlach would have failed under the Casey test. Specifically, Part II addresses how this type of legislation, both in purpose and effect, places a substantial obstacle in the path of a woman accessing an abortion. Finally, this Note concludes with a recommendation for future plaintiffs to raise the infringement issue, allowing courts to address the impact this type of anti-abortion legislation as a whole has on a constitutionally protected right.