A federal appeals court is deciding whether certain provisions of Texas’ new abortion law are unconstitutional.
In making that decision, judges will have to weigh those provisions using what’s known as “the undue burden test.”
For two decades, judges have been weighing the constitutionality of abortion regulations using this concept.
"When people hear us talk about the legal principles that relate to abortion today, they hear us talk about undue burden," says Sarah Weddington, the lawyer, based in the Austin area, who successfully argued the landmark abortion case Roe vs. Wade before the U.S. Supreme Court in 1972. "Exactly what that means will differ with various judges, but that’s the language, the test by which we have to look at things state legislatures do and whether it should be allowed or not."
The test became widely used in cases dealing with abortion restrictions after 1992 – when it was used to decide a case called Planned Parenthood vs. Casey.
"It created a new test rather than a trimester approach for determining when such restrictions were constitutional," says Professor John Robertson, who teaches at the University of Texas Law School. "That new test was the undue burden test. An undue burden is a law whose purpose or effect is to create a substantial obstacle for a woman wanting an abortion prior to viability."
Michael Gerhardt, a law professor at the University of North Carolina Chapel Hill, says determining the standard of undue burden is pretty clear.
"It's well settled, it is at least 20 years old," Gerhardt says. "Courts have had a long time dealing with that standard and it should be fairly easy, I would think, for the Fifth Circuit to make a determination as to whether or not any particular regulation is impeding in some way a woman’s right to choose or whether or not it’s a relatively incidental interference."
The two provisions in question this time are the following:
- First, can Texas require abortion doctors to have admitting privileges at a hospital within 30 miles of their clinic?
- Second, must doctors follow an FDA protocol that requires two trips to the clinic instead of one when performing drug-induced abortions?
Kermit Roosevelt, a professor at the University of Pennsylvania Law School, says the judges will look at two things to determine whether those provisions present an undue burden.
"First they would be looking for any evidence that this is a sort of bad faith regulation, a regulation that serves no purpose other than to making it more difficult to obtain an abortion," Roosevelt says. "The other thing they’d be looking for assuming they find some valid purpose would be how severe the burden is. So does it actually make it extremely difficult or impossible for some women to obtain abortions? In that case, even if it does serve a valid purpose, it would probably be an undue burden."
Sarah Weddington expects this case won’t be determined by the Fifth Circuit Court alone.
"I do think probably the case will probably get to the Suprme Court."
Professor Robertson at UT says the Supreme Court justices will use the same undue burden test if – and when – they consider the case.
"Having to drive 300 miles, spend a couple of nights because there’s a 24 hour wait, the cost, the fact that a lot of women can’t afford that, or how do they explain their absence, could well be an undue burden but that’s ultimately what the Supreme Court will decide in these cases," Robertson says.
The appeals court heard arguments in the case earlier this month. So far there’s been no indication on when the court will make a decision.