In Texas, An Undue Burden

In March, the federal appeals court upheld the admitting privileges part of the law, leading many clinics to close. On Thursday, another panel of the same appeals court refused to block the surgical clinic standards part of the law. That provision remains on appeal, but the court said it was likely to be upheld.

In practice, these rulings mean that about one in six Texas women seeking an abortion will live more than 150 miles from the nearest clinic. There will be no facilities in the huge swath of the state west and south of San Antonio. The remaining clinics will not be able to handle the resulting demand; they would have to quadruple the number of abortions performed in order to keep up.

Tell me again, this is about women's health?

In allowing the surgical clinic standards to take effect, the appeals court panel cited language from the Supreme Court's 1992 ruling that an abortion restriction would be unconstitutional if, "in a large fraction of the cases in which it is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion."

That the standards would impede access for one in six Texas women was not a large enough fraction to impress the appeals court. If being forced to drive 500 miles to obtain an abortion because of a medically unnecessary rule isn't an undue burden, I don't know what is.

Since that June morning, the Supreme Court has -- thankfully -- shown no eagerness to revisit the controversial topic, with the exception of its shameful about-face in upholding partial-birth abortion.

In the Texas case, the appeals court got it dangerously wrong. Scarier still is imagining what the justices might do if called on, once again, to rule on abortion and undue burdens.

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Ruth Marcus' email address is ruthmarcus@washpost.com.