Undue burdens created by the Texas Abortion Law for vulnerable pregnant women

Abstract

The new Texas abortion law requires the physician to determine whether a fetal heartbeat is present and prohibits abortion after a heartbeat has been documented. An exception is allowed when a "medical emergency necessitated the abortion." These and other provisions of the statute are to be enforced through "civil actions" brought by private citizens. This article identifies 3 populations of vulnerable women who will experience undue burdens created by the Texas abortion law. We begin with an account of the concept of undue burden in the jurisprudence of abortion, as expressed in the 1992 US Supreme Court case, Planned Parenthood v. Casey of Southeastern Pennsylvania. We then provide an evidence-based account of the predictable, undue burdens for 3 populations of vulnerable women: pregnant women with decreased freedom of movement; pregnant minors; and pregnant women with major mental disorders and cognitive disabilities. The Texas law creates an undue burden on these 3 populations of vulnerable women by reducing or even eliminating access to abortion services outside of Texas. The Texas law also creates an undue burden by preventably increasing the risks of morbidity, including loss of fertility, and mortality for these 3 populations of vulnerable women. For these women, it is indisputable that the Texas law will create undue burdens and is therefore not compatible with the jurisprudence of abortion as set forth in Planned Parenthood v. Casey because a "significant number of women will likely be prevented from obtaining an abortion." Federal courts should therefore strike down this law.