A constitution is defined as "fundamental principles or established precedents according to which a state is acknowledged to be governed." Essentially, the constitution is the framework for which our country is built on. While it is important for our constitution to embody the state's fundamental principles, it is more important that it support laws that reflect the current state of our country. The term "dynamic constitution" means that the constitution supports our ever changing society. The constitution itself is not changing, but the way it is interpreted enables our society to progress.
The fundamental right to privacy within the context of abortion was established in the 1973 Roe v. Wade decision. The majority opinion stated that the right to privacy included in the due process of the fourteenth amendment extended to a woman’s right to have an abortion. At the time of this decision, forty-six states had anti-abortion laws, yet women’s reproductive health was not politicized. Since the Roe v. Wade decision, state laws have been chipping away at a woman’s fundamental right to having abortion. States have been able to limit a woman’s access to abortion by establishing procedures that pass the undue burden test, set by Casey v. Planned Parenthood in 1992. The undue burden test considers a potential law under the context of whether or not it places a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” A new law would require abortion clinics to meet the same standards as ambulatory surgical centers and that doctors who perform abortions have admitting privileges to hospitals within a thirty mile radius of the clinic. Once this law passed the Fifth Circuit, the Supreme Court stated that would not become involved in this case, so it did not put a “stay” on the law.
Given precedents established in Casey v. Planned Parenthood, this law is unconstitutional. After Roe, women had come to expect the ability to have access to an abortion and control their reproduction, and Casey decided that it would be unconstitutional for that expectation to be removed. Since this new law would close down many abortion clinics, women living near clinics that could potentially close would no longer be able to expect the option of having an abortion. They could still get an abortion, but they could no longer expect to have the procedure at convenient location.
The constitutionality of this law is questionable under the undue burden test. In August, twenty-one clinics were still open after the first round of new requirements. On October 8th, 2014, all abortion clinics in Texas were closed besides eight because they failed to meet a second round of new requirements. On November 11th, it was confirmed that three more were able to open, with the current number of Texas clinics up to eleven. Although more were able to reopen, eleven clinics is not enough to serve the thousands of women in Texas. The scarcity of clinics places an undue burden on Texas women because of how difficult it is to get to one. If you are a woman living in Lubbock, the closest clinic would be in Fort Worth. Without a car, getting an abortion in Fort Worth would be nearly impossible because there is no public transportation between those destinations. With a car, the trip would still take at least four hours, requiring women to miss half of a work day. After traveling, a woman would have to stay overnight because of the twenty-four waiting period required before getting an abortion. The travel requirement places an undue burden on women that was not there previously. Given the lack of abortion clinics open in Texas, an undue burden is placed on them because they now may have to serve more women than they are accustomed to.
A federal judge struck down Alabama’s same law that would limit abortion access. The Supreme Court has decided to not take on this case, but they should because there is a divide on this issue across the states. However if it reached the Supreme Court, they too would be divided. It can be expected that Justice Kennedy would be the swing vote in this case. In Casey v. Planned Parenthood, Kennedy voted for Planned Parenthood, so maybe this time he would again vote in favor of women’s abortion rights.
