SCOTUS To Use Undue Burden Test to Decide If Texas Abortion Law is Constitutional

Nov 16, 2015

The U.S. Supreme Court will review a case next year that challenges a Texas abortion measure signed into law in 2013. Justices will use what’s called the undue burden test to decide whether the law’s requirements are constitutional or not.


On paper, the law requires clinics to become ambulatory surgical centers and physicians to receive admitting privileges at hospitals within 30 miles from where the abortions take place. Texas officials argue both those requirements make getting an abortion safer. 

"The state has wide discretion to pass laws ensuring Texas women are not subject to substandard conditions at abortion facilities," said Attorney General Ken Paxton in a statement. "The advancement of the abortion industry’s bottom line shouldn’t take precedent over women’s health, and we look forward to demonstrating the validity of these important health and safety requirements in Court.”

Amy Hagstrom Miller, the lead plaintiff in the case against the law, however, says what it does in practice is deny women their right to an abortion.

"Driving hundreds of miles and waiting 20 days for an appointment -- that is by far and away undue burden," Hagstrom Miller says. 

Undue burden is the test used for more than 20 years by the U.S. Supreme Court to decide an abortion law’s constitutionality. Rather than rely on the trimester approach, they weigh whether a substantial obstacle is in the way of a woman who wants a constitutionally protected right to an abortion.

"We are optimistic that applying the well-established law that states cannot impose an undue burden on access to abortion services that this law can’t stand," says Nancy Northup, president of the Center for Reproductive Rights, which is defending the plaintiffs in the case.

If the majority of Justices decide the law can stand, though, the number of abortion clinics in the state will decrease. In 2013 when the measure was signed into law, Texas had about 44 clinics. Today it has about about 19. Should the law go into effect, Texas will have nine clinics, all in the state’s major metropolitan areas. Austin would lose one of its two clinics.