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What Constitutes an “Undue Burden” on a Woman’s Right to Abortion?

The most significant abortion case in a quarter of a century will likely be heard by the Supreme Court in the coming year.  The case, Whole Woman’s Health, et al. v. Cole, et al., would potentially set forth with greater specificity than ever before what kinds of abortion laws constitute an “undue burden” on a woman’s right to abortion.  The case is an appeal of a Fifth Circuit Court of Appeals’ decision upholding the constitutionality of a Texas abortion clinic regulation which requires abortion clinics to meet basic medical standards for surgical centers.  In June, by a slim 5-4 vote, the Supreme Court issued a temporary stay on the law, barring its enforcement while it deliberates on the next course of action.  The Justices are scheduled to decide whether to take on the case on October 9th.

The portions of the Texas law being challenged are: (1) a requirement that abortion providers have admitting privileges at a hospital within 30 miles, in case of complications requiring emergency hospital care; and (2) a requirement that abortion clinics comply with the same minimal health and safety standards as other outpatient surgical centers.  Examples of these basic standards are requirements for:

(For a full summary of the Texas law, click here [1].)

An “Undue Burden” on a Woman’s Right to Abortion

In Planned Parenthood v. Casey (1992), the Supreme Court reaffirmed the right to abortion established in Roe v. Wade, and it also created a new standard for analyzing abortion laws.  Casey ruled that an abortion law is invalid if it constitutes an “undue burden” on a woman’s right to abortion: “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

However, the Supreme Court in Casey also held that state legislatures may regulate abortion clinics to protect maternal health, and that certain such protective laws are constitutional and valid: “As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion.”

Casey also reaffirmed Roe’s recognition of the State’s “important and legitimate interests in preserving and protecting the health of the pregnant woman [and] in protecting the potentiality of human life.”  Indeed, Roe specifically stated that the State’s authority to regulate abortion clinics to protect women’s health during an abortion “obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that may arise.”

Considering these statements in Roe and Casey, it appears that the Texas law falls squarely into the parameters set by the Supreme Court for valid, constitutional abortion laws protecting women’s health, and does not constitute an undue burden.  This is why the Fifth Circuit upheld the Texas law.

The point of fetal viability is also part of the undue burden analysis.  Under Casey, the undue burden analysis is implicated prior to viability.  Thus, any future conversation by the Supreme Court on the undue burden standard should involve some kind of discussion on the point of viability, especially considering recent medical advances which have revealed more about human development in utero than was known 23 years ago, when Casey was decided in 1992.  That said, it is not unreasonable to predict that the Court might re-consider the point of legal fetal viability.

A “Due” Burden?

Casey distinguished that, although an abortion law may be a burden, it may be a due burden: “Not all burdens on the right to decide whether to terminate a pregnancy will be undue.”

For example, the Texas law requiring a physician to be trained in the abortion procedures he/she performs on women is a “burden” on abortion, but it is a due burden.  The fact that something is a burden does not in itself make it illegal or unnecessary.

The Texas law does not impose impossible, unheard-of standards unprecedented in medicine; rather, it simply extends existing regulations for outpatient surgical clinics to abortion clinics.  The law does not require clinics to be turned into “mini-hospitals” as some have argued.  Texas abortion clinics were not previously required to meet medical industry safety standards, and the new law simply brings them under the umbrella of existing clinic regulations appropriate for the type of procedure performed.  The laws regulating out-patient surgical centers are specifically tailored to serve the needs of patients undergoing same-day procedures.  Abortion is an out-patient, same-day procedure.  Therefore, it is reasonable for abortion clinics to be held to the same basic medical standards as other outpatient surgical centers.

If the Supreme Court decides not to hear the case, the Fifth Circuit decision upholding the Texas law will stand, and other states can confidently enact similar laws protecting women’s health.  However, a Supreme Court ruling overturning the Texas law could drastically alter the landscape of American abortion jurisprudence.  In short, a case of this potential magnitude is worth watching closely.