What, exactly, constitutes an ‘undue burden’ on an abortion?

The landmark U.S. Supreme Court decision in Planned Parenthood v. Casey rested on a single question: What exactly constitutes an abortion? Six years earlier, the court had ruled in Planned Parenthood v. Casey that…

What, exactly, constitutes an ‘undue burden’ on an abortion?

The landmark U.S. Supreme Court decision in Planned Parenthood v. Casey rested on a single question: What exactly constitutes an abortion? Six years earlier, the court had ruled in Planned Parenthood v. Casey that states had an “undue burden” on a woman’s right to get an abortion if there were “substantial obstacles” to performing the procedure. But in Casey, the court addressed the most well-known abortion cases that were the subject of such barriers, so it seemed clear what constituted “substantial” challenges. What the court did not address in Casey, however, was whether state laws that limited abortion access constituted an undue burden.

At the time Casey was decided, abortion was a relatively new and controversial legal right, enacted in 1973 by the U.S. Supreme Court’s Roe v. Wade decision. Roe was based on the idea that state legislatures might have some special rights as to how their laws would be implemented. While the court might not resolve the constitutionality of a law by addressing specific cases, it could ask questions that made clear what was or was not an undue burden.

Justices Sandra Day O’Connor and John Paul Stevens wrote the opinion, and John Paul Stevens’ concurrence laid out a blueprint for the court to decide new questions in the future: What if a restriction “creates obstacles of an excessive or impermissible kind?” If that restriction, if an “undue burden,” forces the woman to endure an “undue” amount of time and effort before the procedure, that restriction is a violation of the Constitution, he reasoned.

That wasn’t the court’s only order of business in Casey: The court also decided how many years it would take for states to have to report the number of abortions they had performed. Casey ordered the 14 states to comply with the reporting requirement until 2018, but it was never enforced because the news of abortions performed was kept in the public domain. In addition, states that had abortions performed in hospitals or in facilities that accepted Medicaid received an extension until 2022, if they had complied.

This particular case was one of the more challenging when it came to evaluating the limits of a woman’s right to an abortion. The court knew that it would create an unnecessary divide between pro-choice and pro-life activists if it decided this case on the merits. Pro-lifers wanted the courts to determine if a law that directly threatened a woman’s right to an abortion was an undue burden; the court wanted to decide if a law that did not directly impinge on an abortion was an undue burden.

Though the court said it would use Casey to clarify its understanding of the viability limit of abortion — for example, is a woman “viable” after the first trimester of pregnancy? — it did not address the most contentious questions surrounding abortion rights: Who has the right to regulate a woman’s pregnancy, how long abortion restrictions should last, and whether states have the right to criminalize an abortion if a woman’s life is in danger.

It’s likely that those same questions remain a significant issue for the court going forward. The court is expected to take up the constitutionality of Texas’ HB2 restrictions on abortion providers next spring, and many abortion-rights activists, along with lawmakers and activists in Texas, are trying to prevent the court from overturning Roe v. Wade by opting to fight HB2 in district court.

As a result, while abortion is one of the most hotly contested issues in American politics, we may never know how the Supreme Court resolved the burden question that Casey provided the platform for.

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