The Undue Burden Test and the Future of Reproductive Justice

A Conversation with Stephanie Toti, Lead Counsel in Whole Woman’s Health

By Leyla Salman, 2L

On November 3, ACS joined the Harvard Law Students for Reproductive Justice and the Women’s Law Association in hosting Stephanie Toti, a Senior Council at the Center for Reproductive Rights who successfully argued Whole Woman’s Health v. Helllerstedt before the Supreme Court.

Ms. Toti began by giving us an overview of the case. Whole Woman’s Health was a challenge of two provisions of Texas law that imposed unnecessary challenges on women seeking an abortion in Texas. First, the statute contained an admitting privileges requirement which mandated that physicians who perform abortions must have admitting privileges at a local hospital. In effect, this requirement resulted in the closure of more than half of the Texas facilities that provided abortions. The second requirement demanded that all facilities where abortions may be performed have to be multi-million dollar surgical facilities. This caused the closure of more than one half of the remaining abortion facilities.

Here’s what was at stake on the day Stephanie Toti argued before the Supreme Court: Had these requirements been allowed, the effect on a woman’s freedom of choice in Texas would have been detrimental. Per year, there are about 70,000 abortions performed in the state of Texas. Under these provisions of Texas law, the number of clinics would have dropped to less than ten, all of which are centered in metropolitan areas. Ms. Toti emphasized that there would not have been a single abortion provider south or west of San Antonia, an area that alone is larger than the entire state of California. In addition to women who would have been cut off geographically from abortion clinics, even those who lived in cities would have to wait three to four weeks to just get an initial appointment at a clinic. Given these difficulties, women who could afford to travel to other states did. Many of those who did not have the financial means to cross state lines to obtain an abortion were forced to carry unwanted pregnancies to term or attempt to self-induce an abortion.

Next, Ms. Toti discussed the meaning of the undue burden standard, the standard by which abortion regulations are judged under the Constitution. This standard originates from a Justice Kennedy opinion in Planned Parenthood v. Casey (1992) which upheld the part of the ruling of Roe v. Wade that found a woman has a constitutional right to seek an abortion but altered the standard for restrictions on that right. The court in Casey decided that the state may not place a substantial obstacle in the way of a woman’s ability to get an abortion but did not define that term. Thus, over the ensuing 25 years, lower federal courts started to diverge in their interpretation of the standard, depending on the state’s overall political ideology. More conservative courts deemed that the sole inquiry to be made was whether the regulation made it virtually impossible to get an abortion. More progressive-leaning courts like the 7th Circuit found a requirement to question whether the law actually serves the state’s purpose of protecting the woman’s health or advancing an interest in human life.

The Supreme Court granted certiorari to clarify the undue burden standard. The opinion by Justice Breyer made clear that the burden is undue if it is not justified by a proportional benefit. Importantly, the 5-3 majority found that courts have an independent obligation to evaluate laws where constitutional rights are at stake. Here, the Court explained, none of the laws’ benefits brought forth by the state of Texas justified the burdens it imposed on women’s right to access. The opinion states that the evidence of benefit had to be actual, not speculative. Ms. Toti thinks this was an immensely important part of the decision which showed that there is no room for junk science in abortion laws. The same rules of evidence that apply in all other court cases should apply in abortion cases, and lower courts were reminded that they can rely only on reliable and credible evidence.

Finally, Ms. Toti shared some of her thoughts about arguing in front of the Supreme Court with us. She said that she was incredibly nervous the day of oral argument but had prepared with more than half a dozen moot courts. She was amazed by the vibrant showing of support outside the Courthouse. More than 3,000 people assembled that day to support abortion rights. Stephanie Toti wholeheartedly believes that what happened outside the courthouse that day is every bit as important to the impact of the reproductive justice movement as what happened inside the courthouse.

Stephanie Toti left us with these thoughts: The Whole Woman’s Health decision is game-changer in the struggle for reproductive justice. It will help fight restrictive laws that subject women seeking abortion to needless obstacles and prevent them from accessing safe care. However, it is important to remember that because the undue burden test is fact- specific, existing restrictive abortion laws aren’t automatically invalidated but must be struck down, one by one, and state by state. There is still work to do, and Ms. Toti is eager to do it.

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