Conflicting Federal Rulings on Abortion Laws Could Prompt Supreme Court Review

January 8, 2015 — Conflicting federal court rulings on state abortion restrictions suggest that the Supreme Court might hear a case to settle whether the laws impose an "undue burden" on women seeking the procedure, Politico reports.

In 1992, the Supreme Court in Casey v. Planned Parenthood affirmed the right to abortion but said that states may make rules governing the procedure, provided that the regulations do not create an "undue burden" on women's abortion rights.

In recent years, states have enacted an increasing number of abortion restrictions, ranging from bans on the procedure after a certain point in pregnancy to stricter requirements on abortion clinics and providers. Various federal courts have upheld some restrictions and struck down similar measures elsewhere, resulting in a "growing inconsistency" about what constitutes an undue burden, according to Politico.

"I think the fate of the undue burden standard is really being debated and discussed in the courts right before our eyes and seems ripe for a Supreme Court review," said Gretchen Borchelt, state policy director for the National Women's Law Center.

Analysts: Admitting Privileges Question Ripe for High Court

The court has not yet indicated whether it plans to hear a state's abortion-rights case this term. However, legal experts note that when federal appeals courts hand down conflicting rulings on similar laws, resulting in a "circuit split," it often prompts Supreme Court attention.

Legal analysts have pointed to state requirements that abortion providers obtain admitting privileges at nearby hospitals as an issue especially ripe for Supreme Court review, given varying rulings on the topic both among and within federal circuits. Specifically, the U.S. Court of Appeals for the 5th Circuit upheld an admitting privileges requirement in Texas (HB 2), while a different panel of judges in the same circuit blocked an admitting privileges law from Mississippi (HB 1390). Meanwhile, the U.S. Court of Appeals for the 7th Circuit has stayed an admitting privileges law in Wisconsin (SB 206) while lower courts hear the measure.

While admitting privileges requirements might appear most ripe for Supreme Court review, additional measures have also produced divergent rulings. For example, the 5th and 6th Circuits upheld medication abortion restrictions in Texas (HB 2) and Ohio (Section 2919.123 (A)), respectively, while the 9th Circuit blocked a similar restriction in Arizona (HB 2036). Federal courts have produced differing rulings on ultrasound requirements, as well as 20-week bans.


Glenn Cohen, co-director of Harvard Law's Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, noted, "The notion of when something becomes an undue burden is extremely vague."

Abortion-rights opponents often frame abortion restrictions as safety measures, rather than barriers to the procedure, according to Politico. For example, Casey Mattox, an attorney for Alliance Defending Freedom, said, "When a state says we’re regulating [abortion] to protect health and safety, is there a right to access to a substandard, unsafe abortion?"

Abortion-rights supporters counter that regulations like admitting privileges requirements are medically unnecessary and have forced many clinics to close (Winfield Cunningham, Politico, 1/8).