In Texas, An Undue Burden

WASHINGTON -- I was in the jittery Supreme Court chamber on a summer morning in 1992 when the right to abortion was on the line. As the justices took their seats, no one except court insiders knew whether the session would end with five votes to overrule Roe v. Wade, or with something more restrained.

The answer was the latter. The right to abortion survived, but it was downgraded from a fundamental constitutional right to one that could be infringed so long as the restriction at issue did not impose an "undue burden" on a woman seeking an abortion

This muddled outcome led abortion rights groups to denounce the ruling, along with disappointed anti-abortion advocates who had hoped to see an end to constitutional protection. "Devastating for women," said Kate Michelman, then president of the National Abortion Rights Action League. "One step closer to the back alleys."

I thought then that this reaction was overstated, and still do. That's not to say that the right to abortion remained unaffected. In the two decades since, states have had a field day enacting anti-abortion restrictions.

Half the states have waiting periods (most 24 hours but as long as 72 hours, in Utah). In addition, 17 mandate counseling about fetal ability to feel pain, mental health consequences or the purported link between abortion and breast cancer, while 12 require that physicians perform sonograms and either show the image to the woman seeking an abortion or offer her the chance to see it.

These restrictions are intrusive and unnecessary, but they can be dealt with. Now, however, comes Texas, with characteristic Texas-sized subtlety. The state Legislature last year passed, and Gov. Rick Perry signed, a law requiring that doctors who perform abortions have admitting privileges at a nearby hospital and that facilities at which abortions are performed meet the hospital-level standards for ambulatory surgical clinics.

All this, supposedly, in the interest of protecting women's health.

Hogwash. If anything, the law endangers women by making access to abortion more difficult, leading to later-term -- and consequently riskier -- procedures.

"The fact is that these bills will not help protect the health of any woman in Texas. Instead, these bills will harm women's health in very clear ways," the American College of Obstetricians and Gynecologists said in an open letter to Texas legislators. "The fact is that abortion is one of the safest medical procedures, with minimal -- less than 0.5 percent -- risk of major complications that might need hospital care."

But, of course, impeding access to abortion is the not-so-hidden point of the law. In that regard, it promises to be impressively effective. Two years ago, Texas had more than 40 facilities performing abortions. The number is about to be winnowed to seven, at most.

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.