September 18, 2014 — The words "undue burden" should be considered "the most important triumph" of former Supreme Court Justice Sandra Day O'Connor's tenure, but judges' comments in a key Texas case suggest that this longstanding standard for abortion-rights cases is threatened, Jeffrey Toobin writes in the New Yorker.
Toobin, a New Yorker staff writer and senior legal analyst at CNN, explains that O'Connor "[a]lmost single handedly ... rewrote abortion law" in her 1992 opinion in Planned Parenthood v. Casey by ruling that "while states did have the right to regulate some aspects of abortion ... such power to constrain a woman's choice had limits."
More specifically, he adds, "As O'Connor put it, 'Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.'"
However, the phrase undue burden "did not have a fixed, self-evident definition," and "the scope of the constraints on state power began shrinking" after O'Connor left the court and it became more conservative, Toobin continues. More recently, conservative state politicians have increasingly "sought to make obtaining an abortion even more difficult," prompting new tests of the standard in court, he explains.
Toobin argues that a Texas law's (HB 2) effect of closing many abortion clinics in the state seems to be "the very definition of an undue burden -- a law whose 'purpose or effect' was 'to place a substantial obstacle in the path of a woman seeking an abortion.'"
While a federal judge "reached just that conclusion" and found portions of the law unconstitutional, the 5th U.S. Circuit Court of Appeals in the "first in a series of appeals relating to the Texas law" said that "a decrease in the number of abortion providers did not impose an undue burden, because of the existence of providers elsewhere in Texas or in neighboring states," according to Toobin.
"In other words, the members of the Fifth Circuit panel seem to believe that anything short of a nationwide ban on abortion does not amount to an undue burden on women’s rights," Toobin argues. "The question, now, is whether" O'Connor's undue burden "achievement will soon be gone," he concludes (Toobin, New Yorker, 9/16).