The Burden of Applying Casey’s “Undue Burden” Standard

­Author: Ryan Goellner, Blog Editor, University of Cincinnati Law Review

After expedited consideration of an injunction of Texas’s now (in)famous House Bill 2 (H.B. 2),[1] in late March the Fifth Circuit Court of Appeals upheld the law’s regulation of abortion providers as comporting with the constitutional protections of a woman’s right to have an abortion.[2] In its strongly-worded order reversing the district court’s permanent injunction of the law in Planned Parenthood v. Abbott, the Fifth Circuit meticulously applied two familiar Supreme Court abortion cases, Planned Parenthood v. Casey[3] and Gonzales v. Carhart,[4] concluding that the Texas law was rationally based and did not impose an undue burden on women seeking abortions in Texas. Although appellate review has settled the Texas case for now, the Fifth Circuit’s intense scrutiny of H.B. 2, applying the reasoning of Casey and Gonzales to the trial court’s findings, reveals the new judicial frontier of the abortion battleground: using constitutional case law to evaluate the validity of detailed regulations of abortion providers that push at the outer limits of Roe v. Wade’s original abortion protections.[5]

Passions Inflamed: The Source of the Controversy

H.B. 2 made two major changes to Texas law. One provision requires that physicians performing abortions have admitting privileges at a hospital that “is located not further than 30 miles from the location at which the abortion is performed or induced; and [that he/she provide] obstetrical or gynecological health care services.”[6] The plaintiffs in Abbott opposed this provision, alleging that many clinics’ doctors would not be willing or able to obtain admitting privileges within that geographically restricted area.[7] Another provision allows the administration of certain abortion-inducing drugs only within the time frame of their FDA-label protocol.[8] The Abbott plaintiffs opposed this provision on the grounds that it would unnecessarily restrict the administration of abortion drugs to women for whom a surgical abortion is difficult if not impossible.[9]

“Today there is no issue that divides the people of this country more than abortion,” observed the district judge in his order to enjoin H.B. 2.[10] The law’s history undoubtedly demonstrates that divisive controversy. Last June, State Senator Wendy Davis garnered national headlines when she filibustered the bill for almost eleven hours during a stormy session in the Texas legislature.[11] In signing the bill into law, Governor Rick Perry maintained that it would “prevent reckless doctors’ performing abortions in horrific conditions.’”[12] After the district court’s permanent injunction of the law, the Fifth Circuit issued an emergency stay, pending an appeal on the merits,[13] and this stay was in turn affirmed by the Supreme Court in a five-to-four decision with written opinions on both sides.[14] No other recent abortion law has inflamed as many passions nor garnered as much national attention.

Trial Court: The Plaintiffs’ Victory

Planned Parenthood of Texas sought to enjoin H.B. 2 as unconstitutional under the Due Process Clause of the Fourteenth Amendment. The order granting the injunction laid out the Supreme Court’s current abortion doctrine: “Before viability, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy” and may “not impose upon this right an undue burden.”[15] The “undue burden test” has two prongs. To survive the first prong – the rational basis prong – a law affecting abortion must be “rationally related to the state’s legitimate interest [in protecting life] balanced with the woman’s interest [in having the abortion].”[16] Under the second prong, a regulation is unconstitutional if it “places a ‘substantial obstacle’ before a woman seeking abortion services,” thereby imposing a substantial burden on her right to choose to have an abortion.[17] The court concluded “that whether an abortion provider has admitting privileges does nothing to further the interest of patient care by improving communication,” timely emergency room services, or physician accountability, and so the law bore no rational relation to the State’s permissible interests under Casey.[18] Next the district court concluded that because the “medication-abortion provision of H.B. 2 [restricting the administration of abortion-inducing drugs] is an undue burden on those women for whom surgical abortion is . . . a significant health risk,” that provision could not be enforced against a physician who used the medication outside the time frame mandated by the H.B. 2.[19]

Appellate Review: Vindication of the State’s Interests

The Fifth Circuit, using the record before it and the analytical tools supplied by the Supreme Court in Roe, Casey, and Gonzales, found that the district court’s order erred in several ways. First, the appellate panel concluded that the district court “took the wrong approach” to the rational basis test outlined in Casey and Gonzales.[20] The panel emphasized the extreme deference a court owes to a legislature under the rational basis scrutiny standard, and that even though “rational speculation” alone would support the H.B. 2’s admitting privileges requirement, facts did exist on the record to support the State’s position that it was preventing medical harm through this provision.[21]

Second, the Fifth Circuit held that the district court offered “vague and imprecise” findings that “fail[ed] to correlate with the evidence,” and that, “even if credited, fail[ed] to establish an undue burden according to the Supreme Court’s decisions.”[22] Although the district court concluded that “some” abortion clinics would close due to doctors’ inability or unwillingness to obtain admitting privileges within 30 miles of their clinic, and hence require long travel times by “some” women seeking abortions, the Fifth Circuit held that this did not have either the “purpose or effect” of placing a “substantial obstacle” (i.e., undue burden) in the way of women seeking abortion.[23]

The Fifth Circuit also concluded that the district court was wrong to enjoin the provision of H.B. 2 restricting medication abortions because those restrictions did “not facially require a court-imposed exception for the life and health of the woman,” i.e., allowing a woman to obtain the abortifacient drugs after the 49-day FDA label protocol.[24] The court noted that despite expert testimony that medication abortions can be a safe alternative up to 63 days after pregnancy for women for whom surgical abortion is impractical or dangerous, H.B. 2 merely restricted one avenue of abortion for certain women while leaving ample other options open for most women.[25]

Finally, it is worth noting that although the Fifth Circuit engaged in something highly similar to a post-hoc reevaluation of the facts presented at trial, the court failed to note any similar requirement in the Texas Health & Safety Code that might demand nearby hospital admitting privileges for a doctor performing an outpatient procedure.[26] It appears, then, that the Fifth Circuit’s “purpose and effect” analysis of the undue burden prong of Casey ignored what quite possibly could be the illicit purpose of burdening women seeking abortions through the admitting privileges requirement. Furthermore, while Casey’s first prong of rational basis review is, of course, extremely deferential, courts have noted in other contexts that rational basis review is not “toothless.”[27] That the Fifth Circuit engaged in a detailed and intensive factual analysis of H.B. 2 begs the question as to why the court did not look at its dissimilarity with other portions of Texas health law, under either the rational basis or undue burden prong, and might indicate that the court missed Casey’s forest for its trees.

New Challenges to Casey’s Malleable Standard

The controversy over H.B. 2 illustrates the crux of the current debate over abortion and its complementary legal challenges. Roe v. Wade was the seminal case in American abortion jurisprudence. Casey and Gonzales “doubled down” and built on Roe by clarifying the government’s ability to “protect fetal life before viability” and its inability to place an “undue burden” on a woman seeking an abortion, even if the law has a rational basis.[28] As demonstrated in the current case, mere speculative purpose can satisfy the low standard of the rational basis prong, and protecting life and preventing harm to women satisfy that requirement. Notably, the “undue burden” prong of Casey has been largely delineated in the case of burdens placed directly on women.[29]

However, abortion regulations are entering new territory by regulating physicians who perform abortions rather than women who seek abortions. Perhaps this is because legislators see this option as a work-around for Casey’s undue burden standard, since proving that a regulation of the medical profession places an undue burden on patients involves an additional factual nexus that is harder to demonstrate. Or perhaps many lawmakers are legitimately concerned that medication abortions not be performed outside the FDA’s 49-day recommended window. Whatever the case may be, federal courts are now being confronted with challenges to this new legislation, but under the traditional RoeCasey (–Gonzales) framework. In turn, just as the Fifth Circuit has done, courts must apply the rapidly-aging precedent of Casey to new and diverse abortion regulations. In fact, in discrediting the district court’s conclusion that “some abortion clinics would close” as too vague, the Fifth Circuit noted that the Supreme Court in Casey did not overturn a portion of the Pennsylvania law that might have required some women to travel up to three hours in order to obtain an abortion.[30] In the appellate panel’s view, “Casey counsels against striking down a statute solely because women may have to travel long distances in order to obtain abortions.”[31] Although regulations imposed on abortion doctors thus affect women seeking abortions, the factual scenarios posed by the court and the encumbrance placed on women in the current case pass Casey’s undue burden test. In using upholding H.B. 2, the Fifth Circuit borrowed from and directly applied Casey. Yet it is questionable whether Casey’s reasoning permits laws such as H.B. 2.

The Final Frontier of Abortion Law

As the controversy over H.B. 2 and other similar laws[32] indicates, the new abortion issue has become how far a state may go in regulating doctors who perform abortions without imposing an undue burden on women seeking abortions. The Fifth Circuit answered this question by giving states arguably broad latitude to impose such regulations. However, other circuits, such as the Seventh, may end up departing from this viewpoint in their application of Casey to similar laws in other states.[33]

Some will argue that the Fifth Circuit’s decision on H.B. 2 is a blow to the Constitution’s protection of a woman’s right to an abortion. Others might call it a slow “chipping away” at women’s rights. Still others will laud the decision as a correct departure from the dangerous path set down by Roe. No matter one’s personal perspective on abortion, however, it is undeniable that laws similar to H.B. 2 are increasing in number across the country. It is likely that a case challenging one of these laws will reach the Supreme Court in the coming years. Almost invariably, the Court will be called upon to clarify Roe, Casey, and their progeny, either “tripling down” on Roe by striking down states’ “H.B. 2” limits on abortion, or undercutting 50 years of precedent by allowing states to curtail access to abortion through these measures.

[1] Act of July 12, 2013, 83rd Leg., 2d C.S., ch. 1, §§ 1-12, 2013 Tex. Sess. Law Serv. 4795-802 (West) (codified at Tex. Health & Safety Code §§ 171.0031, 171.041-048, 171.061-064, & amending § 245.010.011; Tex. Occ. Code amending §§ 164.052 & 164.055).

[2] Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 2014 U.S. App. LEXIS 5696 (5th Cir. 2014).

[3]Planned Parenthood v. Casey, 505 U.S. 883 (1992).

[4] Gonzales v. Carhart, 550 U.S. 124 (2007).

[5] Roe v. Wade, 410 U.S. 913 (1973).

[6]Tex. Health & Safety Code § 171.0031.

[7] Planned Parenthood v. Abbott, 2014 U.S. App. LEXIS 5696, at *18-20.

[8] Tex. Health & Safety Code § 171.063. This provision essentially criminalizes the prescription of abortion-inducing drugs more than 49 days after conception (the FDA label protocol), but Planned Parenthood’s expert contended that these drugs can and are safely used up to 63 days after conception. Planned Parenthood v. Abbott, 2014 U.S. App. LEXIS 5696, at *49.

[9] Planned Parenthood v. Abbott, 2014 U.S. App. LEXIS 5696, at *51-52.

[10]Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891, 897 (W.D. Tex. 2013).

[11] Elise Hu, The Wendy Davis Rocket Ride, NPR News, (last visited Apr. 8, 2014).

[12] Joan E. Greve, Rick Perry Signs Restrictive Abortion Bill Into Law, ABC News

(Jul. 18, 2013),

[13]Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir. 2013).

[14]Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506 (2013). Even the Fifth Circuit took note of this extraordinary procedural history. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 2014 U.S. App. LEXIS 5696, *11 (5th Cir. 2014).

[15] Planned Parenthood v. Abbott, 951 F. Supp. 2d 891, 898 (quoting Gonzales v. Carhart, 550 U.S. 124 at 146 (2007)).

[16] Id.

[17] Id. at 897.

[18] Planned Parenthood v. Abbott, 951 F. Supp. 2d 891, 900.

[19] Planned Parenthood v. Abbott, 951 F. Supp. 2d 891, 908.

at 44 to 46.

[20] Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 2014 U.S. App. LEXIS 5696, *27 (5th Cir. 2014).

[21] Planned Parenthood v. Abbott, 2014 U.S. App. LEXIS 5696, at *30-31. The court emphasized Planned Parenthood’s concession that each year in Texas, 210 women (out of the more than 72,000 that obtain abortions) must be hospitalized due to complications from the procedure.

[22] Planned Parenthood v. Abbott, 2014 U.S. App. LEXIS 5696, at *37-38.

[23] Id. at *40-41.

[24] Id. at *59.

[25] Id. at *60-61.

[26] Likely because there are none. A search of the Texas Health & Safety Code on LexisNexis did not reveal any such requirements.

[27] See, e.g., Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012).

[28] See Gonzales v. Carhart, 550 U.S. 124, 146 (2007).

[29] In Casey itself, the Court struck down a Pennsylvania regulation requiring a woman to notify her husband before obtaining an abortion. Planned Parenthood v. Casey, 505 U.S. 883, 893-94 (1992).

[30] Planned Parenthood v. Abbott, 2014 U.S. App. LEXIS 5696, at *40-41.

[31] Id. at *40. After engaging in a rough analysis of how many miles a woman might have to travel from one side of the Rio Grande Valley to the other in order to obtain an abortion after clinic closures, the court concluded that this extra travel time was not an “undue burden.” Id. at *39.

[32] See Jackson Women’s Health Org. v. Currier, 2013 U.S. Dist. LEXIS 53510 (S.D. Miss. Apr. 15, 2013); Planned Parenthood of Wis., Inc. v. Van Hollen, 2013 U.S. Dist. LEXIS 115326 (W.D. Wis. Aug. 2, 2013), for examples of suits by Planned Parenthood seeking to enjoin laws similar to H.B. 2.

[33] See Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013). In its opinion in the current case, the Fifth Circuit noted the Seventh Circuit’s affirmance of a preliminary injunction of a Wisconsin law similar to H.B. 2 in Planned Parenthood of Wisconsin, but distinguished the cases largely on their procedural posture.


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