July 15, 2016 Articles

Roe Revitalized: The Supreme Court Sharpens "Undue Burden" Analysis

Casey's "undue burden" standard has been enhanced, clarified, and given new energy, and the right to choose has been reaffirmed for the foreseeable future.

By Brandon Robb – July 15, 2016

With their decision in Whole Woman’s Health v. Hellerstedt, 579 U.S. ____ (2016) on June 27, 2016 (Justice Breyer writing for a five-member majority, including also Justices Kennedy, Ginsburg, Sotomayor, and Kagan), the Supreme Court reaffirmed the central premise of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), decided 24 years earlier, which itself had reaffirmed and upheld the essence of the Court’s landmark decision recognizing a woman’s constitutional right to an abortion in Roe v. Wade, 410 U.S. 113 (1973), and set forth the “undue burden” standard for judging the constitutionality of restrictions on that right.

The 40-page decision dashed the hopes of many legislators around the country that the high court had changed sufficiently enough in the last quarter-century so as to curtail abortion access, and gave new clarity to undue burden analysis. In doing so, theCourt soundly rejected Texas’s argument for greater judicial deference on the question of which anti-abortion regulations advance a state’s interest in protecting maternal health in the case of pre-viability abortions per Casey’s framework; instead, the Court squarely placed on the judiciary the responsibility of weighing the actual medical benefits of challenged regulation, when the purpose “or effect” of such regulations creates a substantial obstacle to a woman’s constitutional right to choose.


Background: Texas’s H.B. 2

The Texas Legislature enacted House Bill 2 in July 2013. Among other things, the act contained two provisions forming the subject of the constitutional challenge in Hellerstedt.

First, the “admitting privileges” requirement provided that “[a] physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” (See specifically Section 2 of the act).

Second, the “surgical center” requirement mandated that “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section governing ambulatory surgical centers]” (see specifically section 4(a) of the act). This provision imposed myriad requirements related to physical size, ventilation, staffing, and other specifications that existing abortion facilities did not meet, and for whom compliance was a practical impossibility (see opinion of the Court in Hellerstedtpages 28–29 for further details concerning the requirements imposed by the provision).

In September 2013, before the provisions took effect, a group of abortion providers in Texas filed a facial challenge to the admitting privileges provision in district court, which granted an injunction about one month later. The Fifth Circuit vacated that injunction three days following, allowing the provision to go into effect. In March 2014, the Fifth Circuit upheld the admitting-privileges provision. In April 2014, a new group of plaintiffs filed an as-applied challenge to the admitting privileges requirement concerning two abortion facilities, and also seeking an injunction against enforcement of the surgical center requirement anywhere in the state (see opinion pages 2–4, providing a synopsis of the case’s procedural posture).

Decision of the District Court

In August 2014, after receiving depositions from experts offered by all parties and following a four-day bench trial, the U.S. District Court for the Western District of Texas concluded that the surgical-center requirement, in conjunction with the admitting-privileges requirement as applied to certain facilities located in west Texas, imposed an undue burden on the right of women across Texas to seek a pre-viability abortion, in contravention of the Fourteenth Amendment as prohibited by Casey.

Specifically, the district court found that the cumulative effect of the two provisions would be the closing of all but seven (and perhaps eight) abortion clinics in Texas that had been operating legally in the fall of 2013, thereby creating an “impermissible obstacle” to women seeking an abortion (see opinion, pages 4–7, detailing the specific fact-finding of the district court concerning the number of facilities affected by the act, as well as the virtually nonexistent medical benefits to women resulting from the act). Accordingly, the district court enjoined enforcement of both provisions.

Decision of the Fifth Circuit

On June 9, 2015, the Fifth Circuit reversed the district court, upholding both the admitting privileges and surgical-center provisions and allowing them to go into effect. Whole Woman’s Health v. Cole, 790 F. 3d 563 (5th Cir. 2015). In addition to procedural findings that several plaintiffs’ claims were barred by res judicata (which are beyond the scope of this article), the Fifth Circuit, in upholding the provisions’ constitutionality, interpreted Casey to mean that a state law “regulating previability abortions is constitutional if (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.”

With that standard underlying its analysis of the act, the Fifth Circuit found that the requirements were “rationally related” to Texas’s asserted interest in “raising the . . . quality of care for women seeking abortions” and protecting the health of such women. The court also held that the provisions were facially constitutional because the plaintiffs had failed to establish that they created an undue burden on “a large fraction” of women in Texas, and that the district court erred by “substituting its own judgment” for that of Texas’s legislature. The Fifth Circuit also opined that women in west Texas affected by clinic closures could drive to New Mexico to obtain abortions (see opinion, pages 8–10, summarizing the Fifth Circuit’s reasoning).

Decision of the Supreme Court

After reversing the Fifth Circuit’s procedural holding and finding that none of the plaintiffs’ claims were barred by res judicata (see generally opinion, pages 10–18), the Supreme Court moved directly to the act’s constitutionality. The Court recognized Texas’s legitimate interest in regulating a medical procedure to ensure maximum safety for patients, but found that a statute, which has the effect of placing a substantial obstacle in the path of a woman’s choice to have an abortion, cannot be permissible, even while furthering that interest. Unnecessary regulations that pose such an obstacle violate Casey’s prohibition on rules that place an undue burden on the exercise of that right.

The Court began by stating that the Fifth Circuit’s articulation of the relevant standard mandated in Casey was incorrect. The Court rejected the Fifth Circuit’s contention that an abortion regulation could withstand a constitutional challenge if “it does not have the purpose or effect of placing a substantial obstacle [in the path of a woman seeking an abortion]” as it omitted any need for a court to assess the medical benefits conferred by the regulations. The Court emphasized that such an assessment is essential to lower courts’ review of abortion restrictions, per Casey (see opinion, pages 19–20). The Court also rejected the second portion of the Fifth Circuit’s standard, noting that whether a statute is “reasonably related to a legitimate state interest” is a less-strict standard more appropriate to, for example, review of economic-based legislation, and not the heightened level of review required where a constitutionally protected personal liberty has been regulated.

In stark contrast to the Fifth Circuit’s view that the district court should have deferred to Texas’s legislature in determining the medical necessity of the challenged regulations, the Court emphasized that while deference to the legislative branch remains an important consideration, the judiciary continues to have an independent duty to review facts in the judicial record. Casey and subsequent case law make clear that the question of whether an abortion regulation creates an “undue burden” is one that a court must determine, especially when the legislature does not itself set forth any findings of fact justifying the regulation, as was true in the instant case (see opinion, pages 20–21).

The Court proceeded to methodically examine the fact findings adopted by the district court concerning the admitting-privileges provision. These included peer-reviewed studies and expert testimony indicating that complications occurring at abortion facilities requiring hospital admissions were exceedingly rare (e.g. less than one-quarter of one percent in the case of first-trimester abortions and one-half of one percent in the case of much rarer second-trimester abortions), and that, even in the case of such complications, the provision made no difference in the outcome of care, since physicians at the hospitals to which any transfer was necessary would have admitting privileges. Moreover, Texas itself had conceded in the district court that it knew of not a single instance in which the requirement would have resulted in better care (see opinion, pages 21–24).

Contrasted with the relative lack of any medical benefit, the district court found that the admitting-privileges provision was responsible for closing half of the abortion clinics in Texas (from 40 down to 20) which had the further effect of “fewer doctors, longer waiting times, and increased crowding” along with a drastic increase in the number of women for whom driving distances to clinics would be significantly increased (see opinion, page 26). The HellerstedtCourt held that the provision therefore created an undue burden for a woman seeking an abortion “in a large fraction of the cases in which [the challenged regulation] is relevant.” This clarified that Casey’s undue-burden standard applies in real-world terms, i.e., the challenged regulation’s effect on women seeking to exercise the right to choose, rather than its effect on women in general, per the Fifth Circuit’s erroneous articulation of the relevant class against whom the impact of the regulation is to be analyzed by reviewing courts.

The Court likewise found that the district court’s fact-finding concerning the surgical center requirement showed that the requirement created an undue burden on women seeking an abortion. Specifically, the Court noted that risks to patients at abortion facilities were not lowered to any appreciable degree by the surgical center requirements, and that abortions have had far fewer documented complications than a wide variety of other procedures commonly performed at facilities in Texas not subject to surgical-center standards (e.g., childbirth, colonoscopies, treatment for miscarriages). Also, the district court findings indicated that addressing the rare complications that do arise from abortions would not be improved by the surgical-center requirements, as such cases almost always require immediate hospitalization, not care at an ambulatory surgical center. (See opinion, pages 29–31.)

Thus, in weighing the negligible medical benefits provided by the surgical-center provision against the district court’s findings that this provision would further reduce the number of clinics from 20 to 7 (or possibly 8), the Court found that the number of facilities able to comply with the law would be incapable of meeting the demand for abortion in the state of Texas. Women seeking an abortion would thus face a substantial obstacle in exercising that right if the provision went into effect (see opinion, pages 32–35, detailing the inability of many existing abortion clinics in Texas to meet the surgical-center requirements and the logistical impediments to remaining clinics to meet demand).

Accordingly, along with rejecting three ancillary arguments advanced by Texas (including an unusually broad severability claim), the Court held that both the admitting privileges and surgical-center provisions of H.B. 2 placed substantial obstacles and undue burdens in the path of a woman seeking an abortion and were therefore facially unconstitutional.


With the Hellerstedt Court flatly rejecting Texas’s abortion restrictions, those seeking to protect access to abortion services have been handed their biggest win in decades. The Court made clear that it expects lower courts deciding challenges to abortion regulations to conduct fact-intensive reviews to weigh the actual medical benefits to patients of such regulations, including whether evidence indicates that the regulations will lead to improved outcomes for patients, against the obstacles such regulations pose to women seeking abortions. No longer will lower courts have latitude to fall back on “judicial deference” to uphold anti-abortion measures that do not yield tangible, demonstrable medical benefits to women seeking abortions.

Although the Hellerstedt Court reviewed only Texas’s statute, the decision’s implication for other states’ regulations are clear. As of August 2015, eight other states in addition to Texas (Alabama, Kansas, Louisiana, Mississippi, North Dakota, Oklahoma, Tennessee, and Wisconsin) had enacted similar “admitting privileges” statutes. Those measures are now substantially less likely to survive judicial review, absent any of the states in question being able to articulate and establish their concrete medical value to women seeking abortions in those jurisdictions.

In addition, although the question was not directly before them, the Hellerstedt majority gave no hint of an inclination to depart from Casey’s “fetal viability” benchmark for assessing anti-abortion measures. Consequently, legislation categorically banning abortion at 20 weeks, which as of January 2016 had been enacted in 16 states (Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Oklahoma, Texas, West Virginia, and Wisconsin), and remains under consideration in Congress, does not seem especially well-positioned to survive challenges either.

Time will tell how the judiciary approaches abortion restrictions in light of the Hellerstedtdecision, but the Court’s directive is clear: Casey’s “undue burden” standard has been enhanced, clarified and given new energy, and the right to choose has been reaffirmed for the foreseeable future.

Keywords: litigation, civil rights, SCOTUS, abortion, undue burden


Brandon Robb is an attorney with Delaney Robb & Rubin in New Orleans, Louisiana.

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