Taylor Deardorff

Law 100 H
Professor Theodore Myhre
12/11/15

Abortion in America, from Roe v. Wade to Whole Woman's Health v. Cole;

What is an Undue Burden?
A plus sign. In the context of a pregnancy test, this one symbol can be greeted with great
celebration and joy, or fear and uncertainty. Because of Roe v. Wade, in 1973 women in the
United States gained a choice in that moment of uncertainty. Yet in passing years, laws restricting
abortion access introduced new barriers to abortion across the United States. As long as abortion
restrictions do not place an undue burden upon the women seeking the procedure, the standard
created in Planned Parenthood v. Casey, the laws can remain in effect. However, next year the
Supreme Court will decide the constitutionality of Texass HB2 law, which mandates
requirements both on the part of the abortion clinics and the abortion doctors, in Whole Woman's
Health v. Cole. Because of the overall safety of abortion as a medical procedure and the lack of
legitimate reasoning behind many of the restrictions, laws like Texass HB2 create substantial,
and unnecessary, barriers to abortion.
Many opponents of the legalization of abortion claim that legalization itself has created
the demand for abortions; however, women obtained abortions before Roe v. Wade regularly,
though not without struggle or danger. Even before Roe v. Wade, at a time abortion was illegal
and extremely costly, ...up to one million women a year sought and obtained abortions in the
illegal era (Solinger). Yet because these abortions were performed illegally, or even by the
women themselves (self-induced abortions), the safety and effectiveness of the procedure varied

widely. Many abortion doctors before Roe v. Wade recounted stories of watching women die
from 106 degree fevers, gas gangrene of the uterus, and complications due to fetal remains stuck
in the cervix, all caused from botched abortions (Ronan). Prior to Roe v. Wade, as many as 5,000
American women died annually as a direct result of unsafe abortions (Cates).
But in 1973, the Supreme Court heard Roe v. Wade, and in a 7-2 decision, struck down
barriers and laws against abortion across the United States. They left some potential for state
restriction of abortion after the second trimester, where they believed the states interest in the
life of the fetus became more compelling, but they declared abortion a fundamental right for all
women through the penumbral right to privacy in the constitution. Thus, abortion became a right
protected by due process and to be viewed under a strict scrutiny basis (Roe v. Wade). Due to
increased access of legal, safe abortions, the maternal morbidity rate of abortions per year since
1973 has lowered to essentially 0--the maternal death per procedure is 0.6 per 100,000, 10 times
less than childbirth itself (NARAL).
Yet as the morbidity rate steadily declined since 1973, the amount of laws restricting
abortion across the United States increased. Because Roe v. Wade stated, a State may regulate
the abortion procedure to the extent that the regulation reasonably relates to the preservation and
protection of maternal health, many states began passing abortion restrictions in attempts to
protect the mothers health. The laws in some states included informed consent, where a doctor
provided a woman with information about the fetus including an ultrasound and listening to a
heartbeat; parental consent before the procedure; waiting periods for the procedure, ranging from
24-72 hours; and spousal consent and approval (Guttmacher, An Overview of Abortion Rights).
In 1992, the Supreme Court heard Planned Parenthood v. Casey, encompassing all four
of the previously stated restrictions. In the previous two decades, most restrictions could not

meet the high standard required for a fundamental right, strict scrutiny. In Casey, however, the
Court struck down only one restriction--spousal approval--as unconstitutional, while the other
restrictions remained intact. Their reasoning focused on a new standard of an undue burden--if
an abortion restriction provided an undue burden to the woman trying to obtain one, the
restriction was unconstitutional. They explained an undue burden as a law with "the purpose or
effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus (Planned Parenthood v. Casey).
Since the Casey ruling, passage of abortion restriction laws has only increased, especially
in the last decade. While in 2000, only 31% of American women lived in states deemed hostile
to abortion (based on number of restrictions), in 2015 over half of women live in hostile states.
In 2011 alone, legislators introduced more than 1,100 provisions, and states had adopted 135 new
reproductive health provisions (Gold & Nash).
Some of these laws, instead of placing restrictions on the woman seeking the abortion,
are referred to as TRAP, or Targeted Restriction of Abortion Provider, laws. These laws are
tailored specifically to clinics providing abortions, and in many cases are stricter than laws
applying to hospitals providing a variety of far more dangerous and risky procedures (NARAL).
One such TRAP law sets restrictions on the abortion clinic. These laws often regulate minutiae of
the clinic, such as the number of bathrooms, the size of the rooms, the plants that can be grown
outside, even the dimensions of janitors closets. Many states now require any abortion to be
performed in an Ambulatory Surgical Center, or ASC, essentially a mini-hospital. These
specifications require expensive modifications or construction to meet the demands (NARAL).
Another form of TRAP law is requiring any physician performing abortions at a clinic to
have admitting privileges at a nearby hospital. This may seem harmless, but this enables the

nearby hospitals to gain a veto power over clinic's ability to provide services, as they can
simply deny admitting privileges to any physician who attempts to perform abortions, giving
hospitals in conservative communities or with a religious affiliation the power to effectively
stop abortions by denying the necessary admission privileges to doctors. (Mazie, Levintova).
The most insidious part of this law, however, is that any nearby hospital is already required to
admit any patient in a medical emergency in their emergency room. Admitting privileges are,
essentially, worthless. But because of these admitting privileges laws, only one clinic in
Mississippi has stayed open, and may close soon. A proud senator bragged, Anybody here in the
medical field knows how hard it is to get admitting privileges to a hospitalIts going to be
challenged, of course, in the Supreme Court and all but literally, we stopped abortion in the
state of Mississippi, legally, without having tooverturn Roe v. Wade... (NARAL).
In November of 2015, the Supreme Court agreed to hear a case determining the
constitutionality of these two restrictions in Whole Woman's Health v. Cole. The case focuses
around Texas HB2 law, enacted in 2013 despite a 13-hour filibuster on the part of Senator
Wendy Davis. The law requires admitting privileges and all abortion procedures to be performed
in ASCs. After the law went into effect, a whopping 22 abortion clinicsmore than half of all
abortion providers in the stateclosed because of the admitting-privileges requirement
(NARAL). If the ASC requirement should go into effect, because of increased costs of
construction and maintenance, all but 10 of the clinics in the state of Texas will close. This will
require 36% of the women of Texas to drive more than 50 miles to receive an abortion, and 14%
will need to travel more than 200 miles. Most shockingly, there will be a nearly 600-mile stretch,
from San Antonio to Las Cruces, with no abortion provider. Additionally, the wait times at some
clinics has risen to over 3 weeks (Levintova).

Due to increased travel and wait times, women in Texas are facing a crisis that many may
not have conceived after Roe v. Wades passage. A recent study by the University of Texas at
Austin found that since 2013, the abortion rate in Texas has decreased 13%, while the percentage
of women reporting attempted self-induced abortion has risen 5% (Grossman et al). As a 2011
study in the New England Journal of Medicine predicted, making access to abortion
unnecessarily costly [through such TRAP restrictions] will probably result in clandestine
abortions and unintended childbearing among families with the least resources and the fewest
options (NARAL). This prediction seems to have become a reality.
But is this law really to further the governments interest in health, safety, and welfare? If
so, these restrictions could be justified. However, by most accounts, performing abortions in
ASCs do not improve any standard of care; the American College of Obstetricians and
Gynecologists and other medical groups have repeatedly noted that abortion can be safely
performed in a typical doctor's office (Levintova). The ACOG has recently argued, Abortion is
one of the safest medical procedures performed in the United States, and neither of the
requirements imposed by the Texas law would make it any safer (Marcotte). While the AMA
and the ACOG will be testifying against the law, the experts testifying on behalf of Texass law
all have ties to the pro-life movement. The leading expert, Dr. James Anderson, is an adviser to
the far-right Virginia Christian Alliance, which believes in creationism, and women obeying
their husbands (Michaelson). He testified before an Alabama Federal Court in 2014 and the
court wrote of his testimony, ...he is so biased against abortion that he would endorse any
opinion that supports increased regulation on abortion providers. (Michaelson). As Judge
Richard Posner, a Federal Court judge appointed by Ronald Reagan, ruled when declaring a
Wisconsin law on admitting privileges, these laws may be in the name of protecting the health

of women who have abortions, yet as in this case the specific measures they support may do little
or nothing for health, but rather strew impediments to abortion...this is true of the Texas
requirement, upheld by the Fifth Circuit in the Whole Woman's case now before the Supreme
Court (Andrews). The health, safety and welfare interest is hard to justify.
While a lower court found the law unconstitutional, the Texas Fifth Circuit Court found it
was not unconstitutional, as it did not prevent a large fraction of women from obtaining an
abortion. This reasoning seems to contradict the reasoning used in Planned Parenthood v. Casey,
when the Court declared spousal approval unconstitutional. In that case, the Court acknowledged
this requirement affected only a very small portion of women seeking abortion, but because the
law effectively blocked access to those women whom it would apply to, it was unconstitutional.
As they stated, "the proper focus of constitutional inquiry is the group for whom the law is a
restriction, not the group for whom the law is irrelevant" (Planned Parenthood v. Casey).
In the end, the Supreme Court has not overturned Roe v. Wade, which means that abortion
is still a fundamental right for American women, subject to strict scrutiny. This, in effect, means
that any abortion restriction passed regulating the first two trimesters must be from a compelling
government interest to do so. While on their face these laws may seem to help promote health,
safety, and welfare for women, these laws effectively block access to a fundamental right for
people in different regions of the United States. Furthermore, these laws may not even help the
government promote health, safety, or welfare at all. If the Supreme Court finds these laws
constitutional and not an undue burden on women in this position of uncertainty, one must
wonder what law could be more effective at blocking access besides an outright ban.

Works Cited
Andrews, Becca. "This Judge Just Condemned Wisconsin's Abortion Law as Unconstitutional.
Read the Withering Ruling." Mother Jones. 23 Nov. 2015. Web. 12 Dec. 2015.
Cates, Willard, Jr., David A. Grimes, and Kenneth F. Schulz. "The Public Health Impact of
Legal Abortion: 30 Years Later." Perspectives on Sexual and Reproductive Health 35.1
(2003). The Public Health Impact of Legal Abortion: 30 Years Later. Guttmacher
Institute. Web. 11 Dec. 2015.
Gold, Rachel Benson, and Elizabeth Nash. "Troubling Trend: More States Hostile to Abortion
Rights as Middle Ground Shrinks." Guttmacher Policy Review 15.1 (2012). Web. 11 Dec.
2015.
Grossman D, Baum S, Fuentes L, White K, Hopkins K, Stevenson A, et al. Change in Abortion
Services After Implementation of a Restrictive Law in Texas. Contraception 2014; 496501.
Levintova, Hannah. "The Supreme Court Just Agreed to Hear a Case That Could Destroy Roe v.
Wade." Mother Jones. 13 Nov. 2015. Web. 12 Dec. 2015.
Marcotte, Amanda. "Theyre Coming for Roe v. Wade: One Swing Justice Might Now Control
Your Legal Right to an Abortion." Salon. N.p., 17 Nov. 2015. Web. 12 Dec. 2015.
Mazie, Steven. "A Wave of New Abortion Restrictions Is Eroding Roe v. Wade." Big Think.
Praxis, 07 Jan. 2014. Web. 12 Dec. 2015.
Michaelson, Jay. "Will Pseudoscience Undo Roe v. Wade?" The Daily Beast. Newsweek/Daily
Beast, 30 Nov. 2015. Web. 12 Dec. 2015.
Ronan, Alex. "The First Legal Abortion Providers Tell Their Stories." The Cut. New York
Magazine, 13 Oct. 2015. Web. 12 Dec. 2015.

"An Overview of Abortion Laws." State Policies in Brief (2015). Guttmacher Institute, 1
Dec. 2015. Web.
Solinger, Rickie. Abortion Wars: A Half Century of Struggle, 1950-2000. Berkeley, CA: U of
California, 1998. Print.
"Targeted Regulation of Abortion Providers (TRAP) Laws: Decreasing Access, Driving
Providers Away." NARAL. 1 Jan. 2015. Web. 11 Dec. 2015.