Meghan Boone (Wake Forest Law) has posted Rationally Regulating Abortion on SSRN. Here is the abstract:
In Dobbs v. Jackson Women’s Health, the Supreme Court announced that the right to abortion was not a fundamental right. In so doing, the Court ensured that abortion regulations moving forward would only be subject to rational basis review, the most deferential of constitutional standards. While the Dobbs majority identified the ostensibly legitimate state interests that could justify abortion restrictions—including protecting prenatal life, safeguarding maternal health, and promoting the integrity of the medical profession—the Court did not (and could not yet) address whether the means that states might adopt would rationally advance these ends. Drawing on empirical evidence accumulated in the years since Dobbs, this Article demonstrates that abortion bans have proven counterproductive to articulated state interests, resulting in increased late-term abortions, worse maternal and fetal outcomes, medical chaos, and higher overall abortion rates. While rational basis challenges face steep odds, this Article contends that forcing states to defend their regulations against the mounting evidence of this failure nevertheless serves important functions: it exposes the weakness of supporting evidence, refocuses debate on questions of women’s equality, and may influence public perception of these laws’ efficacy and desirability. Further, this approach parallels successful social justice litigation strategies in the gay rights and disability rights movements, both of which were able to argue that even under rational basis review, the “science” that was used to discriminate against them was patently false and contradicted by lived experience. As the harmful realities of abortion bans become part of Americans’ common lived experience rather than remaining hypothetical or confined to political debate, courts may be less willing to defer to bogus evidence that contradicts observable outcomes—making the time ripe for arguments under rational basis review.
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