Undue Burdens on Abortion Rights Commentary
Undue Burdens on Abortion Rights
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JURIST Guest Columnist Maya Manian of the University of San Francisco School of Law discusses the debate over abortion laws and how the future of a woman’s right to choose resides with the Supreme Court as they are set to rule on a monumental case out of Texas later this term…

Recently, the Oklahoma Supreme Court blocked the implementation of yet another abortion restriction. Oklahoma has some of the most restrictive abortion laws in the nation and only three abortion clinics in the entire state. In September 2015, Dr. Larry Burns, one of Oklahoma’s few abortion providers, filed a challenge to SB 642 on the ground that it violates the Oklahoma Constitution’s single subject rule. The challenged legislation contains four different provisions targeting abortion, including warrantless searches of abortion clinics and expanded criminal and civil penalties for violations of a broad swath of abortion regulations.

The Oklahoma Supreme Court recently issued a stay against SB 642. Although this particular challenge will be decided on state constitutional grounds, in the past the Oklahoma Supreme Court has relied on the US Supreme Court’s abortion jurisprudence to strike down extreme abortion restrictions. For example, in 2013 the Oklahoma Supreme Court invalidated a state law banning the provision of medication abortion—abortion care accomplished by drugs as opposed to a surgical procedure—for violating federal constitutional law.

Ultimately the fate of abortion rights in Oklahoma and around the country will depend on the US Supreme Court’s ruling this term in a major abortion case out of Texas, Whole Woman’s Health v. Cole. State courts’ reliance on federal constitutional abortion law makes Whole Woman’s Health crucial for abortion rights in Oklahoma and nationwide. There is little doubt that Justice Kennedy will cast the deciding vote in the case. If he remains committed to the ideals of liberty and equality expressed in his prior opinions, Kennedy should uphold meaningful protection for women’s right to decide whether and when to bear children.

Almost twenty-five years ago in Planned Parenthood v. Casey, Kennedy co-authored the opinion reaffirming Roe v. Wade. Although Casey allowed states more leeway to regulate abortion than Roe, the decision still protected women’s constitutional right to choose abortion by prohibiting any abortion restrictions that act as an “undue burden” on a woman’s right to access abortion care. Casey defined an “undue burden” as a law that has the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.”

Whole Woman’s Health will require the Supreme Court to squarely address how courts should apply the undue burden test—which will determine whether or not women continue to have meaningful access to abortion care. The case challenges a Texas law that requires abortion providers to obtain “admitting privileges” at a local hospital and abortion clinics to transform themselves into mini-hospitals pursuant to ambulatory surgical center (ASC) rules. If the Supreme Court upholds the Texas law, the number of abortion clinics in the state could drop from over 40 to about 10, effectively leaving thousands of women in rural areas without access to abortion care. Oklahoma has also passed an admitting privileges requirement, which is currently being challenged in state court.

State legislators claim that admitting privileges and ASC requirements serve to protect women’s health. Professional medical organizations disagree. The American Medical Association (AMA), which usually stays out of abortion cases, filed a brief in the Texas case contending that admitting privileges requirements targeted at abortion not only fail to improve safety but in fact impede [PDF] it. The US Court of Appeals for the Fifth Circuit upheld [PDF] the Texas law, holding that the undue burden test places a heavy burden on challengers to prove that an abortion restriction amounts to a “substantial obstacle” while at the same time requiring minimal evidence [PDF] from the government that the law actually serves the asserted state interest in protecting women’s health.

In contrast to the Fifth Circuit, several other federal courts applying Casey’s undue burden standard have struck down laws similar to the law at issue in Texas. For example in cases from Mississippi [PDF], Alabama and Wisconsin, federal courts have concluded that admitting privileges mandates are a pretext for shutting down abortion clinics and therefore amount to an undue burden. Judge Richard Posner, one of the most influential and widely cited jurists of our time, best defined the “undue burden” test in his decision enjoining Wisconsin’s admitting privileges mandate: “The feebler the [state’s] medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous. It is not a matter of the number of women likely to be affected.” Kennedy should clarify that Casey’s undue burden standard provides meaningful protection for women’s right to access abortion care, as Judge Posner articulated.

Commentators question whether Kennedy will continue to protect abortion rights, in part based on his 2007 opinion upholding the federal “partial-birth” abortion ban in Gonzales v. Carhart. However, Carhart is easily distinguished from the types of restrictions at issue in the Texas case. Carhart dealt with one particular method of abortion used only later in pregnancy. In contrast the Texas law impedes women’s access to abortion care even at the earliest stages of pregnancy by shutting down abortion clinics with no evidence of corresponding health benefit. Furthermore in Carhart, Kennedy specifically rejected the idea that the court should defer entirely to the government’s factual assertions in support of abortion restrictions, and emphasized: “The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” Kennedy should reject Texas’ baseless assertion that its law serves to protect women’s health and the Fifth Circuit’s overly deferential approach to the undue burden test.

Perhaps all four of the liberal justices would argue for a return to stronger protections for abortion rights as established in Roe. And all four of the conservative justices may argue that the court should overturn Roe and jettison abortion rights entirely, as Justice Scalia has repeatedly advocated. As the fulcrum of the current Supreme Court, Justice Kennedy often paves a middle path. Casey exemplifies Kennedy’s middle path on abortion rights.

In Casey, Kennedy and his colleagues famously wrote”The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Since shutting down the vast majority of a state’s abortion clinics without proof of any health benefit to women clearly imposes an undue burden on women’s constitutional right to access abortion care, Casey dictates that Texas’ recent abortion restrictions be struck down. Kennedy should continue to protect liberty and equality for women in Texas, Oklahoma, and nationwide by reaffirming meaningful protection for women’s right to decide whether and when to bear children.

Maya Manian is a Professor of Law at the University of San Francisco School of Law. She teaches courses on Constitutional Law, Family Law, and Gender and the Law. Her research focuses on access to reproductive health care. Professor Manian received her B.A. from the University of Michigan and her J.D. from Harvard Law School.

Suggested Citation: Maya ManianUndue Burdens on Abortion Rights, JURIST – Academic Commentary, December 12, 2015, http://jurist.org/forum/2015/maya-manian-undue-burdens.php.

This article was prepared for publication by Cassandra Baubie, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org

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