Analysis Law and Policy

For Too Many, Accessing Abortion Is Already an ‘Undue Burden’

Jessica Mason Pieklo

The latest wave of clinic closures in Texas illustrates how absurd judging abortion restrictions under the "undue burden" test has become.

In the four months since the Roberts Court refused to block a U.S. Fifth Circuit Court of Appeals decision to allow the admitting privileges portion of HB 2, the massive Texas anti-abortion omnibus bill, to take effect while its legal challenge proceeded, at least 19 abortion clinics in the state have closed, including the last abortion clinic between Houston, Texas, and the Louisiana border, as well as the last abortion clinic in the economically depressed Rio Grande Valley, leaving a 400-mile stretch in the state where the poorest Texans have no access to reproductive health care.

The very real human rights crisis unfolding in Texas sets the scene for legal arguments around the latest wave of anti-abortion restrictions that are at once both critically important and patently absurd. At the core of those arguments is a question, deceptively simple, that could permanently shift the direction of abortion rights jurisprudence: Does having to travel hundreds of miles away to access reproductive health care create an undue burden on abortion rights?

Objectively it’s impossible to answer that question, but in any other context, the idea that a patient must travel hundreds of miles, sometimes out of state, simply to access a doctor is by its very nature unduly burdensome. Then again, we’re talking about accessing abortion, and more specifically accessing abortion in Texas under the U.S. Fifth Circuit Court of Appeals, which is anything but objective when it comes to abortion rights. After all, in January, when the Fifth Circuit heard arguments to reinstate the lower court order blocking a provision of HB 2 while the legal challenge went forward, Judge Edith Jones quipped whether the “peculiarly flat and not congested highway” that connects the Rio Grande Valley to San Antonio helped or hurt the argument that a law that intentionally created hundreds of miles between abortion clinics unduly burdened abortion rights. On the one hand, Jones and the other judges speculated, the flat open highways were conducive to fast driving, so the distance might not be so bad. On the other hand, cutting off abortion access to enormous portions of the state would affect the state’s most impoverished and at-risk populations—an undue burden on those women’s rights, sure, but that alone isn’t enough to strike a law as unconstitutional.

How have we gotten to this point—where the question of whether 400 miles between providers or closing a state’s only abortion clinic is considered a serious legal question, and not simply absurd? How can it be that anti-choice activists loudly and proudly announce their legislative intention to re-criminalize abortion and courts continue to turn a blind eye to this overtly political agenda that brazenly defies the Constitution? In a recent article in the Harvard Law Review, professor Caitlin Borgmann rightly argues that this depressing state of abortion rights law is thanks in large part to a double standard developed and nurtured by the federal courts in evaluating abortion restrictions that demands challengers put forward often impossible evidentiary proof that a restriction will cause immediate harm, while giving lawmakers a free pass in supporting the supposed government interest in severely regulating a fundamental constitutional right. More critically, Borgmann argues, until the federal courts are willing to actually question lawmakers on their evidence and their intentions, there’s no reason to think the state of abortion rights jurisprudence will improve anytime soon.

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As Borgmann explains, the problem is two-fold. First, under the undue burden standard, courts must first decide whether a law has the purpose of placing a substantial obstacle before women seeking abortions. The second prong of the undue burden test has courts decide whether the restrictions have the effect of placing a substantial obstacle in the path of women seeking abortions. According to Borgmann, the courts’ conclusions are then by their nature subjective. “[T]hat question inevitably depends on variables including the number and distribution of providers in a given state, and individual judge’s views of what constitutes a ‘substantial obstacle,'” she writes. Contrast that with the ridiculously easy burden placed on state legislators to prove their restrictions have merit—the lowest possible rationale basis test that simply requires lawmakers be able to show they had a “rational basis to act“—and the court will presume an abortion restriction is valid.

But if anti-choice activists are clear their goal is to place substantial obstacles in the place of women seeking abortions, why do the federal courts ignore this evidence and essentially skip over this line of inquiry? One reason is because, as Borgmann argues, it’s become practically impossible for anyone challenging abortion restrictions to meet this “substantial obstacle.” For proof, Borgmann points to Mazurek v. Armstrong, a Supreme Court decision that upheld a law permitting only physicians to perform abortions. In that case, the Supreme Court rejected, as insufficient proof of a purpose to place a substantial obstacle in the way of abortion access, the fact that an anti-abortion rights group drafted the law and that no evidence supported its patient safety rationale.

If anti-choice advocates’ admissions that their restrictions are designed to substantially deter, if not eliminate altogether, abortion access, and legislators are not required to defend their bills with actual evidence, then whose interests are the federal courts serving?

One of the enduring criticisms of the Roe v. Wade decision is that it over-medicalized abortion, empowering doctors rather than women, by grounding much of the rationale for the opinion in a paternalism that remains a permanent fixture in the abortion debate today. For example, look at the successes by the same-sex marriage campaign in the conservative federal courts that also are upholding abortion restrictions. The successes in the marriage equality campaign came about in large part because advocates took head on the claims and phony evidence that same-sex marriages harms children and families. And, more importantly, the federal courts believed them.

Thanks to the federal courts’ unwillingness to require lawmakers to put forward defensible evidence in support of abortion restrictions, the post-Roe landscape of abortion access looks eerily like the pre-Roe landscape, with a checkerboard of access increasingly concentrated in urban and coastal areas, and overlapping restrictions adding additional time and costs to access care. Thanks to the success of anti-choice activists in pushing the limit of the undue burden standard, anti-choice activists have largely succeeded in making safe, legal abortion access practically impossible for most women in this country.

Borgmann argues that the battle over admitting privileges laws and clinic closures may mark the turning point in the push to render abortion rights meaningless by perpetuating a thousand individual “undue burdens”—there’s evidence even the federal judiciary may have reached a limit in just how much leniency it is willing to grant anti-choice lawmakers. Borgmann may be right, and we may be witnessing the beginning of the end of the federal courts’ enabling of the historic assault on women’s rights. But for too many in this country, it’s a hollow victory of too little, too late.

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.

News Politics

Tim Kaine Clarifies Position on Federal Funding for Abortion, Is ‘for the Hyde Amendment’

Ally Boguhn

The Democratic Party voiced its support for rolling back the restriction on federal funding for abortion care in its platform, which was voted through this week.

Sen. Tim Kaine (D-VA), Hillary Clinton’s running mate, clarified during an interview with CNN on Friday that he still supports the Hyde Amendment’s ban on federal funding for abortion care.

During Kaine’s appearance on New Day, host Alisyn Camerota asked the Democrat’s vice presidential nominee whether he was “for or against” the ban on funding for abortion. Kaine replied that he had “been for the Hyde Amendment,” adding “I haven’t changed my position on that.”

Robby Mook, Clinton’s campaign manager, told CNN on Sunday that Kaine had “said that he will stand with Secretary Clinton to defend a woman’s right to choose, to repeal the Hyde amendment.” Another Clinton spokesperson later clarified to the network that Kaine’s commitment had been “made privately.”

The Democratic Party voiced its support for rolling back the restriction on federal funding for abortion care in its platform, which was voted through this week.

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“We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment,” reads the platform.

Kaine this month told the Weekly Standard that he was not aware that the party had put language outlining support for repealing Hyde into the platform, noting that he had “traditionally been a supporter of the Hyde amendment.”

Clinton has repeatedly said that she supports Hyde’s repeal, calling the abortion care restriction “hard to justify.”

Abortion rights advocates say that Hyde presents a major obstacle to abortion access in the United States.

“The Hyde amendment is a violent piece of legislation that keeps anyone on Medicaid from accessing healthcare and denies them full control over their lives,” Yamani Hernandez, executive director of the National Network of Abortion Funds, said in a statement. “Whether or not folks believe in the broken U.S. political system, we are all impacted by the policies that it produces. … Abortion access issues go well beyond insurance and the ability to pay, but removing the Hyde Amendment will take us light years closer to where we need to be.”