Seeing the Forest for the Trees: Why Courts Should Consider Cumulative Effects in the Undue Burden Analysis

Marlow Svatek, 2016 Sarah Weddington Writing Prize Winner

This article is based on a scholarly paper titled Seeing the Forest for the Trees: Why Courts Should Consider Cumulative Effects in the Undue Burden Analysis. The paper won second place in the 2016 Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights, and it will be published in Volume 41.1 of the NYU Review of Law & Social Change in the Spring of 2017. To learn more about the Writing Prize, including how to submit an entry, click here

In the past six years, states have adopted a whopping 334 abortion restrictions. Some of these restrictions target the women who seek abortions by subjecting them to misleading counseling, intrusive ultrasounds, and unnecessary waiting periods. Others target abortion clinics by regulating everything from the width of their hallways to their grass. Others still target abortion providers by requiring them to obtain admitting privileges at local hospitals.

But all of these restrictions have something in common: They are all part of a larger strategy by anti-choice politicians to gradually erode abortion rights in a piecemeal fashion. Some proponents of these laws have actually admitted as much.

Unfortunately, this piecemeal strategy has been extremely effective, closing abortion clinics at an unprecedented rate. Women have experienced this assault on abortion access most acutely in Mississippi, Missouri, North Dakota, South Dakota, and Wyoming, where only a single clinic remains in each state.

Although the Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt provided some much-needed clarification of the undue burden standard, as well as hope that courts will strike down these laws going forward, it did not answer an important threshold question: When applying the undue burden standard, should courts consider only the isolated effects of the challenged abortion restriction or the cumulative effects of the state’s abortion regulation scheme?

Federal appellate courts are currently divided on this issue, and the answer to this question will determine whether these restrictions survive constitutional scrutiny going forward.

On one hand, both the Seventh and Ninth Circuits consider the cumulative burdens imposed by the state’s abortion regulation scheme as a whole. For example, the Seventh Circuit enjoined Wisconsin’s hospital admitting privileges requirement in part because of how that requirement would interact with the state’s existing 24 hour waiting period. The court explained that the hospital admitting privileges requirement would shut down half of the state’s clinics, thus requiring women to travel longer distances to obtain abortions. In turn, the waiting period would further compound that burden by requiring women to travel those long distances multiple times. Judge Posner, writing for the court, concluded that “[w]hen one abortion regulation compounds the effects of another, the aggregate effects on abortion rights must be considered.”

The Ninth Circuit took a similar approach when it enjoined Arizona’s medication abortion restrictions. The court considered whether the challenged restrictions would operate in conjunction with “other abortion regulations”—namely, the state’s mandatory 24 hour waiting period—to impose an undue burden. Although the challenged restrictions required three clinic visits, the court noted that the state’s existing 24 hour waiting period required yet another visit to the clinic. After defining the burden based on the cumulative effects of the state’s regulatory scheme as a whole, the court held that the plaintiffs were likely to succeed on the merits of their claim.

The Fifth Circuit, on the other hand, took a different approach. Long before Texas’ ambulatory surgical center requirement made its way up to the Supreme Court, it came before a Texas district court. Although the plaintiffs brought a facial challenge only to the ambulatory surgical center requirement, the district court considered how that requirement interacted with other state restrictions, such as Texas’ sonogram requirement, waiting period requirement, and hospital admitting privileges requirement. The district court concluded that the cumulative effects of mounting state restrictions had started to chip away at the core right protected by Roe v. Wade, and it enjoined the ambulatory surgical center requirement as a result.

But the Fifth Circuit rejected this approach when the preliminary injunction was appealed. It noted that the state’s admitting privileges requirement had been upheld in a previous case where the court decided that a travel distance of up to 150 miles did not constitute an undue burden. Although the ambulatory surgical center requirement would add an additional 100 miles of travel, the court considered only the “incremental increase of 100 miles” rather than the total travel distance of 250 miles. By considering only the relative increase in burden, the court suggested that the absolute (i.e., cumulative) burden imposed by the regulatory scheme as a whole was irrelevant to the undue burden analysis.

The Fifth Circuit’s application of the undue burden analysis ignores something crucial: the combined effect of, and interaction between, multiple abortion restrictions. Given the current abortion regulation landscape, a woman’s ability to choose to terminate her pregnancy will not be affected solely by the challenged restriction in isolation, but rather by all of the restrictions that limit her ability to obtain an abortion. Each of these restrictions may seem to make it only slightly more difficult or expensive to obtain an abortion when viewed in isolation, but they pose a dangerous threat to abortion rights when viewed in the aggregate.

The Fifth Circuit’s approach doesn’t just defy common sense; it is also inconsistent with Supreme Court precedent. In Planned Parenthood v. Casey, for example, the Court adopted what it described as an “empirical” and “common sense” approach that considered the practical effects of the challenged restriction in the real world. In Casey, the Court’s only rationale for striking down the spousal notification requirement was the practical effect it might have, given the prevalence of domestic violence in the context of pregnancy notification. The Court’s exclusive consideration of this de facto barrier to abortion access is extremely difficult to reconcile with the Fifth Circuit’s failure to consider how the challenged restriction interacts with other state-imposed obstacles to abortion access.

Interestingly, the Supreme Court has previously acknowledged that the state’s overall regulatory scheme affects the undue burden analysis, albeit in a slightly different way. In both Gonzales v. Carhart and Stenberg v. Carhart,  the Court noted that the availability of alternative abortion procedures within the state’s regulatory scheme might render a particular restriction constitutional where it would otherwise not be. If courts may consider how the state’s regulatory scheme as a whole might mitigate the potential burden imposed on a woman seeking an abortion, why isn’t the Fifth Circuit considering how the same regulatory scheme might exacerbate such a burden? This is yet another way in which the Fifth Circuit’s approach deviates from Supreme Court precedent.

We should be especially suspicious of the Fifth Circuit’s approach given that courts already consider cumulative effects in other areas of constitutional law. For example, when courts address challenges to state laws under the dormant commerce clause, using a test that similarly balances competing interests through the language of “undue burdens,” they consider the state’s regulatory scheme as a whole to determine whether it imposes an unconstitutional burden on interstate commerce. So why do we treat abortion rights any differently?

In sum, the problem is not only the way state legislators have regulated abortion, but also that some courts have upheld those restrictions in a piecemeal fashion. This disjointed approach to the undue burden analysis is out of sync with common sense, Supreme Court precedent, and other areas of constitutional law. And it has resulted in a hostile abortion climate that is immune from meaningful constitutional review.


The views and opinions expressed in this blog are those of the author(s) and do not necessarily reflect the views or position of If/When/How.