In deciding the constitutionality of abortion regulations, courts often apply an “undue burden” standard in order to determine whether such regulations impermissibly hinder the ability of women to exercise their right to obtain abortion care. That standard focuses on patients rather than abortion clinics, despite the fact that a significant number of abortion regulations target clinic operations in order to make abortion more difficult to provide. Such regulations also make it difficult to operate and work at such clinics, given the frequent disruptions such laws cause. Rather than depending on the somewhat unclear legal foundation of undue bur-den, this Comment proposes a strategy that clinic owners and other advocates for abortion rights could use to invalidate the targeted regulation of abortion providers (TRAP laws). Abortion clinic owners could argue that regulation of their clinics— which makes them much more expensive to operate—constitutes a regulatory taking under the Takings Clause of the Fifth Amendment. This Comment analyzes the feasibility of applying takings law to typical state TRAP laws using both federal doctrine (particularly the Penn Central factors) and state-level takings statutes. Although this strategy remains untested, abortion clinic owners could fare well using the Takings Clause as a means to stay open, protect their employees, and keep treating patients.
"Taking on TRAP Laws: Protecting Abortion Rights through Property Rights,"
University of Chicago Legal Forum: Vol. 2017
, Article 28.
Available at: https://chicagounbound.uchicago.edu/uclf/vol2017/iss1/28