Iowa Supreme Court holds state constitution protects right to abortion

Five Iowa Supreme Court justices ruled today that a mandatory 72-hour waiting period for all women seeking abortion violates due process rights and equal protection guaranteed under the state constitution. Planned Parenthood of the Heartland and the American Civil Liberties Union of Iowa had challenged that provision, part of a law Republican legislators and Governor Terry Branstad enacted in 2017.

Today’s decision guarantees that the 2018 law banning almost all abortions after a fetal heartbeat can be detected will be struck down. A lawsuit filed by Planned Parenthood, the ACLU of Iowa, and the Emma Goldman Clinic is pending in Polk County District Court.

In addition, the ruling indicates that even if the U.S. Supreme Court overturns the 1973 Roe v. Wade decision in the coming years, Republicans will be unable to ban or severely restrict abortion rights in our state.

Writing for the majority, Chief Justice Mark Cady rejected the “undue burden” standard for evaluating abortion restrictions, set out by the U.S. Supreme Court in its 1992 Casey decision. I enclose below the full text of the majority opinion and the dissent by Justice Edward Mansfield, whom President Donald Trump has named as a possible U.S. Supreme Court pick. I’ve excerpted some of the most important passages.

A separate section of the 2017 law, banning almost all abortions after 20 weeks gestation, was not challenged in this case and remains in effect.

Some Iowa judicial trivia: today marks the second time the Iowa Supreme Court has overturned an abortion-related ruling by Polk County District Court Judge Jeffrey Farrell. He had also upheld the administrative rule banning the use of telemedicine for abortion. The Supreme Court unanimously struck down that rule in 2015.

Justices Brent Appel, Daryl Hecht, and David Wiggins joined Chief Justice Cady’s 67-page decision. Justice Thomas Waterman joined Mansfield’s dissent. Full text:

Some excerpts from Cady’s decision:

In this appeal, we must decide if the constitutional right of women to choose to terminate a pregnancy is unreasonably restricted by a statute that prohibits the exercise of the right for a period of seventy-two hours after going to a doctor. In making this decision, we recognize the continuing debate in society over abortion and acknowledge the right of government to reasonably regulate the constitutional right of women to terminate a pregnancy. In carefully considering the case, we conclude the statute enacted by our legislature, while intended as a reasonable regulation, violates both the due process and equal protection clauses of the Iowa Constitution because its restrictions on women are not narrowly tailored to serve a compelling interest of the State. The State has a legitimate interest in informing women about abortion, but the means used under the statute enacted does not meaningfully serve that objective. Because our constitution requires more, we reverse the decision of the district court.

The chief justice reviewed evidence presented at trial showing that most Planned Parenthood patients live at or near the poverty line, and that the waiting period would impose additional costs and burdens. He also noted the special difficulties women in abusive relationships face when seeking an abortion or any medical care. (For more on those points, read the amicus curiae briefs filed by National Abortion Federation and the Iowa Coalition Against Domestic Violence.)

The majority determined that “strict scrutiny” should apply to the court’s consideration of the waiting period, rather than the “undue burden” stemming from the federal high court’s ruling in Casey.

Ultimately, adopting the undue burden standard would relegate the individual rights of Iowa women to something less than fundamental. It would allow the legislature to intrude upon the profoundly personal realms of family and reproductive autonomy, virtually unchecked, so long as it stopped just short of requiring women to move heaven and earth. By applying the narrow tailoring framework, however, we fulfill our obligation to act as a check on the powers of the legislature and ensure state actions are targeted specifically and narrowly to achieve their compelling ends. The guarantee of substantive due process requires nothing less. Accordingly, we conclude strict scrutiny is the appropriate standard to apply.

At trial, both sides presented studies about whether mandatory waiting periods influence women’s decisions on abortion. Cady noted that Planned Parenthood clinics already give women extra time to weigh their options if counselors determine the patient is not firm in the decision. Experts who testified for Planned Parenthood pointed out that some studies purporting to show that many women changed their minds because of a waiting period “might well indicate that the women were prevented from returning, rather than decided not to return.” From page 58 of the majority opinion:

Importantly, the factual question in this case is not whether some women enter PPH [Planned Parenthood of the Heartland] clinics conflicted or even whether some women benefit from additional time to consider their options. The record confirms that PPH’s current same-day regime ensures that women who are conflicted or who need more time are, in fact, given extra time or are given the resources to pursue other options. Rather, the factual issue in this case is whether requiring all women to wait at least three days between the informational and procedural appointments will impact patient decision-making.

Without a mandatory delay in effect, the evidence showed that women who are conflicted in their decision or under duress do not receive the procedure and, instead, are given more time to consider or given resources to pursue alternatives. The imposition of a waiting period may have seemed like a sound means to accomplish the State’s purpose of promoting potential life, but as demonstrated by the evidence, the purpose is not advanced. Instead, an objective review of the evidence shows that women do not change their decision to have an abortion due to a waiting period.

From pages 61 and 62:

the evidence conclusively demonstrates that the Act will not result in a measurable number of women choosing to continue a pregnancy they would have terminated without a mandatory 72-hour waiting period. Moreover, the burdens imposed on women by the waiting period are substantial, especially for women without financial means. Under the Act, patients will need to make two trips to a PPH clinic since it is likely they would not be readily able to obtain certification from a local, non-PPH provider. The Act requires poor and low-income women, which is a majority of PPH patients, to amass greater financial resources before obtaining the procedure. Patients will inevitably delay their procedure while assembling the resources needed to make two trips to a clinic. […]

Due to the Act’s delay, some patients will be pushed beyond the twenty-week surgical abortion cutoff and others will be pushed beyond the ten-week medication abortion window and will be denied the procedure of their choice. The delay will also expose women to additional medical risk. Finally, victims of domestic abuse and sexual assault will endure additional hardships, including jeopardized confidentiality.

Strict scrutiny requires state actions be narrowly tailored to further a compelling state interest. The overwhelming weight of the evidence demonstrates that requiring all women, regardless of decisional certainty, to wait at least seventy-two hours between appointments will not impact patient decision-making, nor will it result in a measurable number of women choosing to continue a pregnancy they otherwise would have terminated without the mandatory delay. The Act, therefore, does not, in fact, further any compelling state interest and cannot satisfy strict scrutiny.

Even if the Act did confer some benefit to the State’s identified interest, it sweeps with an impermissibly broad brush. The Act’s mandatory delay indiscriminately subjects all women to an unjustified delay in care, regardless of the patient’s decisional certainty, income, distance from the clinic, and status as a domestic violence or rape victim. The Act takes no care to target patients who are uncertain when they present for their procedures but, instead, imposes blanket hardships upon all women.

Unlike mandatory delay statutes in other states, the Act does not provide an exception for rural women who live far from health centers.

Wrapping up the section considering Planned Parenthood’s due process claim under Article I, Section 9 of the state constitution:

We have great respect for the sincerity of those with deeply held beliefs on either side of the issue. Nevertheless, the state’s capacity to legislate pursuant to its own moral scruples is necessarily curbed by the constitution. The state may pick a side, but in doing so, it may not trespass upon the fundamental rights of the people.

Because it cannot satisfy strict scrutiny, we hold the “seventy-two hour[]” waiting requirement of Division I of Senate File 471 violates due process under the Iowa Constitution. See Iowa Code § 146A.1(1).

Cady could have ended the ruling there, but he went on to consider Planned Parenthood’s equal protection claim under Article I, Section 6 of the state constitution: “Although not required, it can serve to cast a greater light of understanding on a divisive issue in society.” From pages 66 and 67:

Implicit in the concept of ordered liberty, we recognize today, is the ability to decide whether to terminate a pregnancy. Profoundly linked to the liberty interest in reproductive autonomy is the right of women to be equal participants in society. As Justice Ginsburg once described the issue, “in the balance is a woman’s autonomous charge of her life’s full course …, her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.” Ruth B. Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 383 (1985).

Autonomy is key in addressing the equal protection claim presented in this case. Autonomy is the great equalizer. Laws that diminish women’s control over their reproductive futures can have profound consequences for women. Some women embrace them and never look back. Others, however, do look back and see a trajectory in life different from men. Without the opportunity to control their reproductive lives, women may need to place their educations on hold, pause or abandon their careers, and never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity. Societal advancements in occupational opportunities are meaningless if women cannot access them. Policies that make education more affordable are meaningless if women are kept out of reach. Equality and liberty in this instance, as in so many others, are irretrievably connected.

When a state action infringes upon a fundamental right, the guarantee of equal protection of the law requires the state to demonstrate the action is narrowly tailored to serve a compelling government interest. Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005). As discussed, we conclude the Act cannot satisfy strict scrutiny. Thus, we hold the “seventy-two hour[]” waiting requirement of Division I of Senate File 471 violates the right to equal protection under the Iowa Constitution.

Mansfield joined the Iowa Supreme Court’s 2015 ruling, which held that an administrative rule banning the use of telemedicine for abortion presented an “undue burden.” Advisers working with Trump to pick Justice Anthony Kennedy’s successor on the U.S. Supreme Court will surely read Mansfield’s dissent in this case closely.

Mansfield’s dissent begins on page 68 of the document posted above with the following observation:

Abortion is one of the most divisive issues in America today. Each side in the debate is motivated by a serious, legitimate concern: on the one hand, a woman’s ability to make decisions regarding her own body; on the other, human life.

Whatever one may think of the United States Supreme Court’s abortion cases, they recognize this point. […]

Unfortunately, the majority opinion lacks this sense of balance and perspective. Foregoing accepted methods of constitutional interpretation, the opinion instead relies at times on an undertone of moral criticism toward abortion opponents. From reading the majority opinion, one would barely know that abortion—with few exceptions—was continuously illegal in Iowa from the time our constitution was adopted until the United Supreme Court overrode our law by deciding Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973). From reading the majority opinion, one would scarcely be aware that many women in Iowa are pro- life and strongly support the same law the court concludes unconstitutionally discriminates against them.

Mansfield argued that the original understanding of the state constitutional provisions on due process and equal protection do not support “a right—let alone a fundamental right—to terminate a pregnancy.” The due process clause “guarantees certain procedures,” but “The idea of substantive due process would have made no sense to our framers.”

Turning to article I, section 6, it consists of two clauses: one requiring uniformity and the other prohibiting special privileges and immunities. Iowa Const. art. I, § 6. A 72-hour waiting period for an abortion is uniform, and it doesn’t grant a special privilege.

An article that I cowrote examined the original understanding of article I, section 6. Edward M. Mansfield & Conner L. Wasson, Exploring the Original Meaning of Article I, Section 6 of the Iowa Constitution, 66 Drake L. Rev. 147 (2018). I won’t repeat the article, which goes into the convention debates and other contemporary sources, but the article concludes, “The uniformity clause was designed to be a barrier against geographic discrimination, the privileges and immunities clause a barrier against government-bestowed monopolies (or oligopolies).” Id. at 201.

Mansfield noted that the state legislature adopted a law criminalizing abortion in almost all circumstances only six months after Iowa’s 1857 constitution went into effect.

Abortion remained generally illegal in Iowa until Roe v. Wade was decided over one hundred years later. Given this timing, i.e., the fact that a ban on abortion was adopted right after the constitution became effective, it is difficult to conceive that a legislatively mandated waiting period for abortion would have violated the original understanding of either article I, section 9 or article I, section 6.

Mansfield objected to the majority’s interpretation of the state constitution as a “living” document. He argued that in three cases, the Iowa Supreme Court had “recognized that the Iowa Constitution was living in the sense that it could adapt to legislative enactments reflecting new societal needs.”

This case involves something quite different. Here, by contrast, the majority has used the living constitution not as a means of adapting to “the community standard expressed by our legislature,” id. at 205, but as a way of erecting a strict scrutiny barrier to legislative action without reference to the constitutional text or history.

The dissent acknowledged the Iowa Supreme Court has “a line of substantive due process cases in the area of parenting and procreation.” Starting on page 74:

I agree with the majority to this extent: One can reasonably read these precedents and conclude that laws relating to abortion also implicate substantive due process rights. Still, there is a crucial difference. In none of those other areas was there a fundamental interest on the other side of the ledger. The fact that there are two profound concerns—a woman’s autonomy over her body and human life—has to drive any fair-minded constitutional analysis of the problem. As I have already pointed out, it underlies the “undue burden” standard set forth in Casey.

Regrettably, instead of admitting there are two weighty concerns, the majority eloquently describes one of these concerns while diminishing the other. Thus, the majority states, and I agree, that “[a]utonomy and dominion over one’s body go to the very heart of what it means to be free.” And later the majority defines abortion in terms of “[w]hether a woman is personally prepared and capable of assuming life- altering obligations and expectations.” I agree that being a parent is a life-altering obligation that falls unevenly on women in our society.

But abortion has another aspect to which the majority gives short shrift. Referring to the anti-abortion side, the majority uses the word “life” at times, but typically as part of the phrase “promoting potential life.” This anodyne phrasing treats restrictions on abortion as if they were analogous to tax credits for having more children. Elsewhere, the majority characterizes Senate File 471 as based on “moral scruples” against abortion. Here again, the majority’s language minimizes the anti-abortion position. As a practical matter, it equates opposition to abortion with opposition to gambling.

To be clear, many if not most abortion opponents view it as ending a life.8

Mansfield pointed out that most state-imposed waiting periods have been upheld under the “undue burden” standard. (For that reason, I anticipated the Iowa Supreme Court would uphold the 72-hour waiting period.)

Waiting periods are not uncommon in Iowa law. We have a three-day waiting period for marriage. See Iowa Code § 595.4 (2018). There is a 72-hour waiting period after birth for adoption. See id. § 600A.4(2)(g). There is a ninety-day waiting period for divorce. See id. § 598.19. All of these waiting periods implicate fundamental constitutional interests in marriage and parenting. The legislature mandated waiting periods to ensure these important life decisions were made after time for reflection. No one can reasonably question the legislature’s power to impose these waiting periods before Iowans begin or end a marriage or give up a newborn baby for adoption. So why can’t the legislature impose a waiting period before an abortion?

A clear majority of courts since Casey have upheld abortion waiting periods under both state and federal constitutions. […]

Two state supreme courts have invalidated waiting periods after rejecting the undue burden test. Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1254, 1263–64 (Fla. 2017) (enjoining a 24-hour waiting period under Florida Constitution); Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 16, 24 (Tenn. 2000) (invalidating Tennessee’s 48-hour waiting period). As I discuss below, one of those states (Florida) has express privacy language in its constitution; the other state case (Tennessee) is no longer controlling law in Tennessee because it was overruled by a constitutional amendment.

While Mansfield did not “discount” Planned Parenthood’s argument that the 72-hour waiting period will require patients to make two trips, he said “this precise argument was made and rejected in Casey. The majority makes no attempt to distinguish Casey. In the end, I don’t think one can distinguish it. The majority simply says it is not the test under the Iowa Constitution.”

Mansfield also warned, “The majority’s requirement of ‘strict scrutiny’ and ‘narrow tailoring’—combined with its rejection of Casey’s undue burden standard—would make any abortion restriction very difficult to sustain.”

After reviewing the conflicting studies and other evidence, Mansfield concluded that the waiting period would lead to between 5 and 8 percent of women changing their minds about getting an abortion, without preventing anyone from accessing the procedure after the waiting period.

The dissent addressed Mansfield’s reasons for joining the 2015 decision on telemedicine abortion.

When the Iowa Board of Medicine adopted a rule prohibiting telemedicine abortions, Planned Parenthood sued to enjoin the rule and represented that it would be forced to close clinics unless it could continue telemedicine abortions. See id. at 261, 268. Applying the Casey standard under the Iowa Constitution, we found in favor of Planned Parenthood and struck down the rule. Id. at 269. We noted the board of medicine had adopted a separate rule that generally approved the use of telemedicine in medical procedures. Id. We further noted that there had been little discussion before the board as to how the telemedicine abortion rule would protect a woman’s health. Id. In sum, we said, “It is difficult to avoid the conclusion that the Board’s medical concerns about telemedicine are selectively limited to abortion.” Id. I joined the opinion because, under Casey, I was not convinced the board’s telemedicine abortion rule served its stated medical purpose.12

For Mansfield, whether Iowa’s waiting period violates due process rights was a “close” call.

With a facial challenge to a waiting period, under Casey, the plaintiff must consider the group of persons for whom the law is a restriction. Presumably, that is almost all women seeking an abortion in Iowa, because almost all of them would not choose to wait seventy-two hours after their initial abortion-related appointment to undergo the abortion. The majority, however, focuses on subsets of those persons, such as rape victims and the indigent. That would be appropriate for an as-applied challenge, not a facial one. With a facial challenge, the plaintiff must show that the law operates as a substantial obstacle in “a large fraction” of the cases where it is a restriction at all. Id. at 895; 112 S. Ct. at 2830.14

Having said all this, I believe the issue is indeed close. Common sense tells me that waiting periods lead to more considered decision- making and to some changes of mind. The Utah study quotes women who, after the 72-hour waiting period, “just couldn’t do it” and changed their mind. Roberts, 48 Persp. on Sexual & Reprod. Health at 182.

But common sense also tells me that requiring two trips will result in emotional and financial costs. It will make it more difficult for some women to have medication abortions and force them into riskier and more invasive surgical abortions. Inevitably, a 72-hour waiting period will end up being longer than seventy-two hours in many cases.

Ultimately, I give considerable weight to the empirical evidence from Utah, to Casey’s express approval of a 24-hour period despite the fact that it would necessitate two trips, and to other federal and state court decisions sustaining waiting periods. I cannot conclude that the 72-hour waiting period in Senate File 471 is facially invalid under article I, section 9 of the Iowa Constitution.

In contrast, the equal protection claim “does not present as close a question for me.”

Equal protection requires treating similarly situated people alike, see, e.g., Tyler v. Iowa Dep’t of Revenue, 904 N.W.2d 162, 166 (Iowa 2017), yet the very gist of the majority’s argument is that women are situated differently from men. They alone bear the burdens of pregnancy. The majority cites no other court that has accepted this line of thinking—i.e., that an abortion restriction per se discriminates against all women while unconstitutionally favoring men.

Mansfield speculated,

The majority of course does not need to reach article I, section 6, since it has already invalidated the 72-hour waiting period under article I, section 9. Thus, I wonder if the majority is laying groundwork instead, perhaps a stepping stone toward a ruling that Iowa’s Medicaid program must fund abortions. […]

In lieu of citing supportive caselaw, the majority asserts that without the benefit of the majority’s ruling, women may “never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity.”

This statement, to my mind, epitomizes the difficulties with the majority opinion. I am confident that many Iowans wholeheartedly agree with the court’s statement. However, I am equally confident many Iowans are offended by it. Is it really the basis on which the court wishes to render an enduring constitutional decision?

UPDATE: Since Mansfield acknowledged this case was a close call, I assume he and Waterman (who joined his dissent) would strike down the six-week abortion ban, citing the federal “undue burden” standard rather than any claim under the state constitution.

Final note: Iowa Democrats celebrated the ruling with several written statements on June 29. From State Representative Beth Wessel-Kroeschell, Ranking Member of House Human Resources Committee:

“Today’s ruling gives Iowa women hope that they will be able to make their own personal health decisions without interference from politicians.

While this is great news, we understand the historic battle for women’s rights in front of us today.

We’re going to keep fighting for the rights our mothers and grandmothers fought so hard to get but are at risk again today.”

From Senate Minority Leader Janet Petersen:

“The decision today by the Iowa Supreme Court is a victory for the constitutional rights of Iowa women.

“It’s a shame that Governor Reynolds and legislative Republicans are working overtime to prevent women from accessing health care. That’s wrong. They are politicians, not doctors.

“It’s time for Republicans and Democrats to come together to increase access to health care for more Iowa women, not set up new barriers, hurdles and hoops.”

From Iowa Democratic Party Vice Chair Andrea Phillips:

“Today, the Iowa Supreme Court sided with Iowa women and families, Iowa values, and the Iowa Constitution. Hopefully, today’s decision will serve as a sign to Kim Reynolds and her extreme, conservative allies that it’s time to stop using Iowa families as pawns for their ideological agenda.

This fight is far from over, but today is proof that even in the face of incredible odds, Iowa values can and will win. Now more than ever, those of us who want to see our state put back to work for the people and communities we love need to stand together and fight. That’s what Iowa Democrats are going to do, and we invite all Iowans who want to share in a brighter future to join us.”

Asked about the ruling in Davenport today, Governor Kim Reynolds said she was disappointed: “I don’t think 72 hours to really think about that or to maybe get some counseling or to talk about the options that are available is unreasonable.”

UPDATE: Planned Parenthood of the Heartland and the ACLU of Iowa released this joint statement.

Iowa Supreme Court Strikes Down 72-Hour Wait Abortion Law
(Des Moines, IA) – Today the Iowa Supreme Court declared unconstitutional an Iowa law that would have 1) required women to make a second, medically unnecessary clinic appointment and 2) then wait at least 72 hours after that appointment to finally receive abortion services.

Suzanna deBaca, CEO of Planned Parenthood of the Heartland, said, “We are elated the Court blocked Gov. Reynolds’ egregious anti-woman agenda of making safe, legal abortion harder to access. No matter what she or her allies in the Legislature throw at us, Planned Parenthood will continue to stand up for Iowa women. We will do all we can to make sure everyone who needs an abortion continues to have access to safe, legal health care – no matter what.”

“This is a tremendous victory,” said Rita Bettis, ACLU of Iowa legal director. ““This is the most important constitutional rights case in Iowa since Varnum. It recognizes that women have equal footing to men under our laws. It holds that women have a fundamental right to a safe and legal abortion which cannot be legislated away. This is a very important, happy day for women’s freedom and equality in Iowa. The court based its decision on its recognition that women’s equality and freedom is intrinsically tied to her ability to make her own decisions about her body and whether to become a parent.”

Bettis noted that “because this decision is rooted in the Iowa Constitution, the Iowa Supreme Court is the final word on the matter. The decision is not subject to appeal to the federal courts.”

PPHeartland Medical Director Jill Meadows, M.D., a plaintiff in the case, said “Today’s ruling is a victory for every Iowan who has ever needed or will need a safe, legal abortion. The Iowa Supreme Court recognized that a 72-hour forced delay would harm patients and had no basis in sound medical evidence. Rather, the Court understood the 72-hour restriction for what it was: an unnecessary attack on a constitutionally protected right and private medical decision.”
The win marks the end of a long legal fight for Iowa women. In May 2017, Iowa passed one of the most restrictive abortion laws in the country, which was scheduled to take immediate effect. Planned Parenthood and the ACLU immediately filed a lawsuit seeking to block two parts of the law that would 1) require women to make a second, medically unnecessary clinic appointment and 2) then wait at least 72 hours after that appointment to finally receive abortion services.

On October 2017, the Polk County District Court declined to block the law. So Planned Parenthood and ACLU then immediately filed an appeal to the Iowa Supreme Court, which granted a temporary injunction until the Court could decide the case.

The new law would have delayed women not just days but in many cases weeks in their efforts to obtain an abortion. For some women, it would have made it impossible for them to access care. before Iowa’s 20-week abortion limit. That’s because of scheduling challenges in women’s lives and with medical services.

The new law also would have created significant burdens and obstacles for women trying to access abortion services. Many already must drive long distances and take time off work and find child care to get medical care. Requiring women to make an extra, medically unnecessary trip to their provider and to wait before having an abortion would be especially devastating to women who already face significant barriers to care, including low-income and rural women, as well as women at risk for domestic violence and women experiencing pregnancy-related complications.

The Court wrote powerfully that a woman’s equality and freedom are intrinsically tied to her ability to make her own decisions about her body and whether to become a parent. It also recognized that enacting the law would have severely curtailed many women’s ability to get abortions and in many cases, prevented them from being able to get them at all.

The Court wrote: “Autonomy and dominion over one’s body go to the very heart of what it means to be free. At stake in this case is the right to shape, for oneself, without unwarranted governmental intrusion, one’s own identity, destiny, and place in the world. Nothing could be more fundamental to the notion of liberty.”

It also recognized that “Abortion regulations impact different women in many different ways. Womanhood is not a monolith. There are few hurdles that are of level height for women of different races, classes, and abilities. There are few impositions that cannot be solved by wealth. Women of means are surely better positioned to weather the consequences of waiting-period requirements. Yet, it is axiomatic that a right that is only accessible to the wealthy or privileged is no right at all. Accordingly, on our review of the Act, we will measure its constitutionality by ‘“its impact on those whose conduct it affects.’”

Further, the Court understood that “Whether a woman is personally prepared and capable of assuming life-altering obligations and expectations is a decision about which the government has scarce insight.”

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