WashU Experts: Texas abortion clinic ruling offers chance to clarify ‘undue burden’ standard

Supreme Court could decide what 'undue burden' really means, how judges should apply it

A federal appellate court on June 9 upheld the limits on abortion put forth in a Texas law, a move that could force the closure of nearly half the state’s remaining abortion clinics.

The case underscores the elasticity of the “undue burden” standard adopted by the Supreme Court in the Planned Parenthood v. Casey case, said two legal experts from Washington University in St. Louis.


“The Fifth Circuit has, in effect, said that traveling more than 150 miles but less than 230 miles each way to reach an abortion clinic does not impose an undue burden on a woman’s ability to obtain an abortion,” said David Law, JD, PhD, professor of law in the School of Law and of political science in Arts & Sciences.

“Much of that decision is a statement of opinion on the court’s part,” he said.

If laws requiring a mandatory 24-hour waiting period are taken into account, Law said, the court’s decision effectively endorses a regulatory regime that requires women seeking abortions to endure “600 miles of driving,” which “very well could constitute an undue burden for many women in this situation,” Law said.


The Texas case might provide an opportunity for the Supreme Court to “clarify what this indeterminate undue-burden standard means and how judges should apply it,” said Susan Appleton, JD, the Lemma Barkeloo & Phoebe Couzins Professor of Law.

“The challengers of the Texas law say they will take the case to the Supreme Court, but that does not mean the Court will agree to review it,” Appleton said.

Law agreed. “There isn’t a clean, targeted question of law to decide,” he said. “There are a lot of procedural questions that would need to be answered first.”

Said Appleton, “I find especially interesting the issue of interstate travel, whether restrictions that prompt abortion patients to seek services in other states raise special constitutional problems.

“Earlier, this court had ruled that Mississippi could not argue its restrictions fell short of an ‘undue burden’ simply because patients could seek services elsewhere,” she said. “Here, the court distinguishes the Texas situation, where some abortion clinics will remain open, even if they are harder to reach than those across a state line.”

Both Law and Appleton are available for media interviews at davidlaw@wustl.edu and appleton@wustl.edu.