Fact Pattern:

Last week, we examined the issue of abortion insofar as it implicates a woman's right to personal autonomy. That has been the primary focus of United States Supreme Court opinions addressing the issue.

Restrictions on the ability to obtain an abortion, quite obviously, affect women in ways that they will never affect men. For this reason, such restrictions arguably implicate not just substantive due process concerns, but also equal protection concerns.

For this week's discussion, imagine that a state has implemented a law that clearly burdens a woman's ability to obtain an abortion. Also, imagine that you represent that woman in a suit against the state challenging that law.

Instructions:

Do you agree with the following? Conclude "yes" or "no" and explain why. In your explanation, be sure to provide the rule and apply the law to the facts:

The State law that clearly burdens a woman's ability to obtain an abortion should be subjected to strict scrutiny. Equal protection is a fundamental constitutional right protected under the 14th Amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....nor deny to any person within its jurisdiction the equal protection of the laws". To pass strict scrutiny, the state law must have "passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest". Here, whether a woman chooses abortion or not is not a governmental interest, this is solely the women's right to personal autonomy; whether a woman chooses abortion or not doesn't make much impact on governmental interest, but will heavily affect the woman. Such state law implementation is not narrowly tailored because this will affect a huge number of citizens in the state, and the burden to prove is broad on all women with children, not narrowed to carve out exceptions or limitations. For the court to apply strict scrutiny in judicial review, the state law must "Infringes a fundamental right or involves a suspect classification. Suspect classifications include race, national origin, religion, and alienage". Here, whether abortion or not is a fundamental right protected by the Constitution, women should have freedom and free will to make decisions without intervention. The state law clearly puts a heavy burden on women, as the suspect class to prove why she needs an abortion, against other classes (e.g. man), therefore, should be applied with strict scrutiny.

Reference:https://www.law.cornell.edu/wex/strict_scrutiny