In Abortion Trial, Judge Questions Definition of "Undue Burden"

As attorneys wrapped up their arguments Wednesday in a trial over a new abortion regulation, the judge presiding over the trial questioned whether the “undue burden” standard being considered in the case should be the same standard used in smaller states.

The focus of the trial is a regulation, which takes effect Sept. 1, that requires abortion clinics to meet the same standards as ambulatory surgical centers. The rule applies to the facilities’ room and doorway sizes, locker room requirements, and additional infrastructure like pipelines for general anesthesia.

Lawyers representing a coalition of abortion providers claimed that the measure would create an “undue burden” for women seeking access to abortion while state attorneys argued that the requirements would not create barriers for a majority of women seeking the procedure.

On Wednesday, U.S. District Judge Lee Yeakel questioned whether court rulings on what constitutes an "undue burden" in abortion cases brought forth in other states should be considered with the same weight in larger states like Texas, where the burdens of travel could be significantly higher.

“Is Texas to be treated exactly like Rhode Island?” Yeakel said, adding that proving whether the regulation imposed an undue burden is the “crux” of this case. Yeakel's decision, expected to be made before the ASC requirement goes into effect, is likely to be immediately appealed by the losing party. Yeakel acknowledged during Wednesday’s hearing that the case could eventually reach the U.S. Supreme Court.

When the ASC requirement goes into effect, only six existing abortion facilities in Texas that meet the ASC standards — all of them in major cities — will remain open to provide abortions, with an additional Planned Parenthood facility scheduled to open in Dallas before September.

But the requirement would leave women living west or south of San Antonio anywhere from 150 to 500 miles away from a Texas abortion facility.

Yeakel interrupted the attorneys several times during their closing arguments, asking whether the law presented “equal protection problems” for women who live in remote areas of large states like Texas. He also questioned whether the standard of an undue burden in abortion cases, which could make it permissible to force a woman to travel an entire day to obtain an abortion, would be applied differently to other medical procedures.

“I have a problem believing that it is reasonable to require someone to travel 150 miles to obtain a procedure they could get” nearby, Yeakel said. “Would we stand for that if you had a sprained ankle or needed an appendectomy? I don’t believe we would stand for this for any other medical procedure.”

Yeakel’s questions provided some insight into what his ruling in the case could determine. But he could be limited by a decision made by a three-judge panel of the 5th Circuit Court of Appeals in March that ruled that traveling 150 miles to a facility was not an “undue burden.”

"I'm bound by the 5th Circuit, but I may disagree with them," Yeakel said. 

Texas Solicitor General Jonathan Mitchell, who presented the state’s closing arguments, pointed to the 5th Circuit’s decision in defending the state’s case. He also argued that the law would not create an undue burden for a majority of the state’s women who would still live within 150 miles of an abortion, adding that less than 10 percent of the state’s population of women would fall into this category.

Stephanie Toti, an attorney representing the abortion providers, said Yeakel’s questions were important points of concern, and she argued that the driving distance would impose a “substantial obstacle” for some women seeking the procedure.

She also questioned why 150 miles had been set as a standard, asking how it could be distinguished from a 200- or 300-mile trip.

This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.

Disclosure: Planned Parenthood was a corporate sponsor of The Texas Tribune in 2011. A complete list of Texas Tribune donors and sponsors can be viewed here.