The 5th Circuit and Casey’s "Undue Burden" Standard

In March, an all female three-justice panel of the Fifth Circuit Court of Appeals unanimously concluded that the new Texas 30-mile rule was not an “undue burden” on women seeking abortions.  In 1992, SCOTUS set a standard for “undue burden” in Casey v Planned Parenthood.  Casey forbids a state from imposing, either through law or regulation, an undue burden on a woman seeking an abortion that imposes a “substantial obstacle” to procuring an abortion.  In late July, a different all male three-justice panel of this same Fifth Circuit Court of Appeals, in a 2-3 decision, ruled that a similar provision that passed in Mississippi could not take effect.  What is the difference in the rationale of the two panel decisions? 

The Fifth Circuit Court of Appeals hears appeals from Texas, Louisiana, and Mississippi federal district courts.  Fifteen active judges preside on the Fifth Circuit Court.  In 2012 and 2014, Mississippi and Texas both enacted laws requiring all abortion doctors to secure admitting privileges at a hospital near his/her abortion practice.  Under current abortion case law, for a state regulation to prevail, the law must first pass rational basis review, and secondly, the law must not establish an undue burden for pregnant women seeking to terminate their unborn child.  The Texas and Mississippi cases centered on interpretations of this undue burden issue.

Both panels concurred that Casey would not render travel under 150 miles as an undue burden for women seeking an abortion.  The difference in the two challenges was whether the court should consider travel across state lines.  In other words, is the court’s analysis to be restricted to clinics within the specific state’s borders?

Since 2004, only one abortion clinic has remained open in Mississippi.  Texas, on the other hand, currently houses twenty abortion clinics.  If the Mississippi clinic closed, clinics in Baton Rouge, New Orleans, and Memphis were accessible within three hours of Mississippi citizens. 

The panel reviewing the Mississippi admitting privileges rule drew an analogy to a 1938 affirmative action case, The State of Missouri ex rel. Gaines v. Canada.  In Gaines, in lieu of allowing an African-American student admission to the University of Missouri School of Law, Missouri enacted a statute allowing the University board to offer Gaines a stipend to attend an out-of-state law school.  The Supreme Court of the United States ruled that Missouri could not relieve itself of the obligations to provide for her citizen’s federal constitutional rights by “providing” such rights through a sister state.

According the panel, the Gaines precedent applied to the Mississippi admitting privileges rule: “Mississippi may not shift [her] obligation to respect the established constitutional rights [right to an abortion] of its citizens to another state.”

The ruling on the Mississippi law marked the first time that a court expanded Casey’s “substantial obstacle” component to also encompass “within the state.”  What influence such a ruling will have on sister courts interpreting abortion regulations will be interesting.