What Constitutes a “Due” Burden on Women’s Access to Abortion: A Cultural Discourse Analysis of Whole Woman’s Health v. Hellerstedt

Abstract

We can find numerous international treaties and legal documents that support women’s choice for safe and legal abortion. However, there are constant different, incompatible and even opposing discourses around abortion globally. This paper examines a 2016 legal case (Whole Women’s Health v. Hellerstedt) to explore how anti-abortion discourse in the U.S. has found its way into the legal text. I begin by addressing women’s right to abortion as a human rights issue and then I investigate how U.S. abortion law entangles with social and cultural reality in the country; I then offer a close reading of the Supreme Court’s judgement and discuss the implications of such a legal text. Public opinions on reproductive rights in the U.S. are closely related to the dynamics between religious culture and feminist activism, and political manipulation leads to divided opinions over the issue. A close reading of the case shows that the court’s constant emphasis on “right to privacy” sets the stage for the current fragility of the reproductive rights in the U.S. cultural and political context. First, it opens a gate for anti-abortion groups to burden women with moral responsibility; second, under TRAP laws it becomes difficult for the abortion providers to justify their stand. I further argue that the undue burden test, which was central to winning this case, is not a strong test for future lawsuits over abortion rights.