Texas Abortion Case May Hinge On Definition Of 'Undue Burden'

A part of a Texas abortion law — one that requires that any clinic performing abortions meet stringent, hospital-like medical standards — is on trial this week in a U.S. appeals court.

The effect of the law has already been dramatic in Texas. Before it passed, a year and a half ago, more than 40 clinics provided abortions in the state. Now there are about 17 such facilities. If this part of the law is reinstated, about 10 facilities would close, leaving vast distances between some residents and the nearest clinic.

Opponents of the law say the loss of these clinics puts an "undue burden," a specific legal standard, on women who seek an abortion. Proponents argue that the strict requirements for clinics protect the safety of these woman.

In the 5th Circuit Court of Appeals, based in New Orleans, on Wednesday, the judges responsible for rendering a decision in the case sharply questioned both sides, leaving little sign of which way they are leaning.

Texas Solicitor General Jonathan Mitchell, the solicitor general representing Texas, argued that the state's law doesn't place an "undue burden" on women seeking to exercise their federal right to abortion just because they may have to drive farther than they would have had to before the law was passed. (Courts use the "undue burden test" to determine if a legislature has passed a law so restrictive that it interferes with a person's constitutional rights.)

"The undue burden has to require something more than driving distance," Mitchell told the judges. "People will have to travel to get abortions in Texas, but that's always the case. People will always have to travel to get an abortion."

Judge Edward Prado pressed the point, asking, "Can you see any distance that would be an undue burden?"

Mitchell said he couldn't give a number, because the U. S. Supreme Court itself hadn't given much guidance in defining "undue burden" in cases like this.

But Sephanie Toti, the plaintiff's attorney, later said the Texas law clearly imposed an undue burden on women in West Texas and the Rio Grande Valley. "If a woman in El Paso has to travel 500 miles to get an abortion, that's an undue burden," Toti said.

Judge Catharina Haynes jumped in, noting that the El Paso scenario was hypothetical because women living there would simply cross the state line, if need be, to a nearby clinic in New Mexico. "We know that nobody is going to drive 500 miles; they're going to go to New Mexico," Haynes told Toti. "You're asking us to ignore that."

But Haynes later asked Mitchell to deal with the same issue. "She [Toti] makes a good point," Haynes said. "Why is Texas fobbing off these women on another state, if these [safety] restrictions are so necessary?"

Haynes asked Mitchell if the clinics in New Mexico were offering those women "substandard care" since they weren't subject to the same rules as Texas clinics.

"We wouldn't say it's substandard care," Mitchell said. "We would say it is care that is less than optimal." He also said people are free to travel across state lines and there is nothing the state can do to address that.

Much of the discussion focused on the women in El Paso, and whether Texas could use that city's proximity to New Mexico clinics as a sort of legal escape clause — claiming those women didn't really have an undue burden because they wouldn't have to drive hundreds of miles east to San Antonio.

Amy Hagstrom Miller, founder and CEO of Whole Woman's Health, was outside the New Orleans courtroom. Prior to the enactment of the Texas law, Whole Woman's Health offered abortions and gynecological care in six clinics around the state. Two have since closed. If the Texas requirement that such clinics meet all the standards of an outpatient surgical care center is upheld, only one of Hagstrom Miller's remaining clinics would be compliant.

"I'm actually quite encouraged by the line of questioning," she said after hearing the arguments in Wednesday's session. "I feel the judges really understand the undue burden as applied to women in El Paso and women in McAllen, and they seem genuinely concerned about those women's access to safe abortion as protected by the constitution."

But Emily Horne, of Texas Right to Life, said she was optimistic the decision would favor upholding the law, instead. "I think it went well," she said. "It's always hard to predict. But it was a very definitely lively discussion. The two judges that were the most questioning of both parties have ruled favorably for us in the past."

Horne says safety for all people is important.

"The reason we're opposed to abortion is it ends a life," she said. "We don't want the woman that's undergoing the abortion to be subject to that [either]; we don't think that her life should be at risk either. And so it's consistent with our morals to protect the lives of women undergoing it, as well as those lives lost by it."

It's unclear when the 5th Circuit will hand down its decision. It took several months in late 2013 to early 2014 for them to rule on another part of the law about whether doctors had to have admitting privileges to certain hospitals. It upheld that provision.

This story is part of an NPR reporting partnership with Houston Public Media and Kaiser Health News.