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

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.

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.

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  • fiona64

    It is amazing to me that people are so privilege-blind that they presume a 400-mile drive is *not* an obstacle for an underprivileged woman who may not have an automobile … and that she will have no problems getting time off, arrange child care, etc. to take the (who knows how long) bus ride to get to a clinic. Yeah, no burden there. ::eyes rolling so hard they can see my brain::

    • Ella Warnock

      They know quite well it’s an undue burden. That’s why they’re all for it. Stupid, s!utty women will just have to live with the “consequences” and “burdens” (code words for “precious, innocent babies”) of their criminal sexual activity. It’s a feature, not a bug.

      • red_zone

        they don’t seem to see-or even care-that they would also be punishing any CHILDREN who are born to women who cannot care for them and/or didn’t want them to begin with. Adoption? They make them sound like toys to be given away.

        they don’t care about anyone’s well-being. they do this for themselves, not the well-being of women and families. THEY are the selfish ones who would demand people suffer for their desire to control other people because they are so weak themselves.

  • rosie

    As quoted by Rand Paul “The women in my family are doing great! They are educated and drive cars!” = Thus all women are doing great and have cars to drive.

    • Nicko Thime

      What do you expect from anyone who wears a squirrel on their head?
      Critical thinking skills?

  • Nicko Thime

    As long as women don’t have reproductive freedom, they don’t have economic freedom.

  • Encopretic

    Planned Parenthood could easily comply with the new law and keep the clinics open….but they choose not to. So who is to blame here?

    • fiona64

      Right. They can just “easily comply” with a law that requires them to make each facility into an ambulatory surgery clinic (which requires higher standards for anesthesia, certain size rooms, etc.) that would require multi-million dollar renovations — for NO MEDICAL REASON.

      You can drop the pretense that you’re even remotely pro-choice, sweetie.

      • Encopretic

        Planned Parenthood are a bunch of bullies who place politics over womens health all the time. If you were remotely pro-choice you’d know that and support one of the many other abortion providers.

        As far as being medically necessary or not…I have no clue because I’ve never had an abortion. But if I did, you can bet it would be at the most qualified clinic around. Not some ragtag chop shop who just cars about the bottom line.

        • fiona64

          Planned Parenthood are a bunch of bullies who place politics over womens health all the time.

          Citation needed.

          Not some ragtag chop shop who just cars about the bottom line.

          The majority of OB/GYNs who provide services at community women’s health clinics like PP do so pro bono. No one goes into community health for the money, sugarplum. The big bucks are in gestation and delivery, not termination. But hey, continue rocking on in Naive-land.

          • Encopretic

            pro bono?

            Ha. That’s a good one. Thanks for the laugh.

          • red_zone

            Prove they’re wrong.

          • fiona64

            Sweetie, my source is primary; I’m in the medical profession. The majority of doctors in those clinics are volunteering their time.

            Your source, on the other hand, seems to be whatever you pull out of your arse.

          • Encopretic

            Provide a source other than “I work in the medical profession so trust me.”

          • fiona64
          • Encopretic

            None of you’re sources back up your claim that “the majority of OB GYNs who provide services at community women’s health clinics like PP do so pro bono”

            Have you proven that some do? yes

            Have you proven that the majority do? Not even close.

          • fiona64

            Oh, I’m sorry. I guess that the 170+ citations cannot possibly compare to the authority of “my mom’s a nurse.” Okay. I guess I’ve been told. ::rolls eyes::

          • Encopretic

            Yeah, except that none of your 170+ citations back up your claim.

            This should be easy for you. All you need to do is provide ONE source that states that the majority of community women’s health clinic obgyns are pro bono. Get to it. I’m willing to admit I’m wrong….just provide that source.

          • fiona64

            ::pats head of delusional little brat::

            Been there, done that.

            Don’t forget to hold your breath and kick your feet while you have your tantrum.

          • Encopretic

            still waiting for that source fiona

            you only need one

          • fiona64

            It’s not my fault you can’t read, sugarplum.

            Now, go color while the adults talk.

          • Encopretic

            Read what?

            You provided some links. And none of them sort your claim.

            You failed.

          • Dez

            Where’s your proof since you seem intent on her providing some? I have yet seen you back up your claims about PP with any links.

          • goatini

            But we are supposed to trust YOU because your mommy is (allegedly) a nurse?

          • Encopretic

            What do you have against nurses? In particular what is it that my mother said that you object to or think wasn’t correct?

          • goatini

            Quite disingenuous, to claim your OWN medical expertise on another thread because “my mother is a nurse”, and then disparage someone else’s ACTUAL medical expertise.

        • goatini

          But since there’s very little money in reproductive health care services, and since ALL the big money is in the global human trafficking adoption syndicate (5 figures a pop for each sale to the highest bidder), you would be 100% full of BS.

        • red_zone

          Funny thing that,; there are very few clinics actually around that perform abortions because of-guess what?-the VERY RESTRICTIONS you INSIST are ‘necessary’.even though most of them are not.

          • Encopretic

            When have I ever stated that the restrictions are necessary?

            You’re seeing things that don’t exist.

          • fiona64

            Well, there was that whole “rag-tag chop shop” thing.

          • Encopretic

            That was a comment comparing Planned Parenthood to other, better, abortion provides and had nothing to do with me stating that the restrictions are necessary.

            Try to be honest.

          • fiona64

            And on what do you base your assessment that Planned Parenthood is a “rag tag chop shop,” dearie? I’m curious.

          • Arekushieru

            Oh, Stacy (or Marie) is that you? Or perhaps it’s PROGO.

            Read this: Planned Parenthood could easily comply with the new law and keep the clinics open….but they choose;

            Then this: placing their bullshit politics ahead of women’s health;

            That’s what YOU said, sweetie. That’s certainly not a ringing endorsement for government to stop placing road blocks in front of women seeking abortion access. So there’s only one thing left it COULD be. Think it through… I know even YOU will get it… eventually.

          • Encopretic

            Ever been to Planned Parenthood? I have. Ever been to a different women’s health clinic? I have.
            And the thing I’ve noticed at the three difference PP I’ve been to is that they are in the shittiest part of town and have the shittiest doctors.
            Maybe you’ve had a different experience but that is mine, so I’m not a fan. Granted, I’m lucky enough to have options and many people don’t

            Also, I seem to remember a few years ago some guy named Tucker Max was going to donate $1 million to PP. Yet they refused the money even though they needed it because of politics. How many women could have been treated with that money? A LOT!

            So, yeah, PP placed (sic) their politics above the health of women.

          • Arekushieru

            Hoo boy, here we go. On the one hand we have people saying that Planned Parenthood is TOO political, then on the other hand saying that they’re not political enough. Perhaps, like most cherry-pickers, you decided to not look too deep into Planned Parenthood’s decision to reject the offer. After all, if they HAD accepted the donation, they would have CREATED a political football that would have left them scrambling left, right and center for YEARS to come. Oops.

            And on top of that, there’s THIS: “There are entire organizations and large numbers of politicians who
            have made it their mission to destroy Planned Parenthood. PP can’t
            afford to take unnecessary risks. Unnecessary risks can mean that the
            organization ceases to exist. That impedes their mission a hell of a lot
            more than not having an additional $500,000.”

            Let me capitalize the last two words on the fourth line and the first word on the fifth line of that paragraph for ya: CEASES TO EXIST.

            Does that make more sense for ya now? Or do I have to add that Tucker Max was not doing this out of the goodness of his heart, considering that the only reason he was donating to Planned Parenthood was to get a tax refund, he wanted Planned Parenthood to rename their clinic after him only because he thought it was ‘funny’ and he only started to write about it WELL after the fact, so it was quite likely that that’s EXACTLY what would have happened. Double oops.

            Shittiest part of town? Gee, I wonder why that is…? Perhaps you should take that silver spoon out of your mouth before opening it next time, ‘sweetie’. It will make you look a LOT less like a fool.

            Shittiest doctors? You are just ONE person among many more that have spoken about how much BETTER they were treated. Triple oops.

        • mamiel

          Can you please provide us specific examples of how an ambulatory surgery clinic is “the best around” in comparison to the existing Texas abortion clinics? Also, since people die more frequently in dental surgery and from tylenol overdose than from surgical abortions, then I am sure you are also advocating here that all liposuction, dental surgery, and tylenol consumption HAS to happen in an ambulatory surgery clinic, right? Oh, and are you comfortable with the fact that Rick Perry’s sister is vice president of United Surgical Partners International, a group that represents the business interests of ambulatory surgery clinics? I anxiously await your response.

          • Encopretic

            All surgery should be performed in a surgical center.

          • Arekushieru

            The point just went right over your head, didn’t it? Dental surgery is ALREADY performed in a surgical clinic. It is, however, not performed in an AMBULATORY surgical clinic. So your comment means absolutely ZILCH.

    • goatini

      Concern troll is concerned.

      • fiona64

        She’s just boring now. Poor widdle girl.

    • red_zone

      Please explain how ‘easy’ the law would be to comply with, in spite of the fact that most of such measures aren’t necessary and would place greater burden on those who need such services.

  • auntbec

    I usually read, vote, and don’t respond on here. However, I have worked in a Planned Parenthood Clinic, as well as a women’s ambulatory surgery center – both in Texas. If you think for one moment that the people who work in any kind of women’s reproductive health do it for the money, or have crap facilities, or doctors/clinic staff don’t care about the women and their families who come in and out of those doors, then you really do not have a clue what you are talking about. To top it off, most of the doctors travel from out of town and some out of state, because there is no assurance they or their families won’t be targeted by some madman. They don’t get reimbursed for that travel, BTW.
    Procedures are more expensive at an ASC because an anesthesiologist is required, a surgical nurse is required, the center itself costs more because it is a SURGERY center – meaning they could replace your friggin’ kneecap there if they wanted to – and when you walk in, it is a hospital environment.
    Now, not only does a woman have to travel, stay in a hotel for at least two nights, find care for her children that she probably already has, and take off from her job(s), while losing that pay you can rest assured, all of this – and it has not a damn thing to do with how flat a fu*king highway is in it’s 400 mile distance. It has to do with the fact, that there are men AND women out (t)here who think for one moment they have any say in this woman’s life and that of her family and their decisions. When women are in the middle of this kind of life choice, 400 miles is an eternity with only dollar signs along the way. It all just disgusts me, and all of you trolls can go (*) yourselves.

    • auntbec

      and don’t even get me started on adoption – asshats.