Is it Federalism or an Undue Burden?

As several states, most notably Arizona pass more restrictive abortion laws there is a lot of ire from the pro-choice side about reduction of access and impediments placed in front of women seeking to end a pregnancy.  And certainly several of the last major challenges to abortion laws were all about which restrictions violated the Roe test and then the undue burden standard.  For example, according to the Guttmacher Institute, 39 states require a physician perform the procedure; 21 require a hospital stay; 17 mandate counseling; and 26 require waiting periods between counseling and the procedure. Interest groups expend significant amounts of money challenging and protecting these restrictions in court, in the state and federal legislatures, and in public opinion.  Judges then apply the undue burden test as outlined in Planned Parenthood of SE PA v. Casey505 US 833 (1992).

What I find interesting is the similarities between the restrictions enacted in these new laws and Oregon’s Death with Dignity Act.  Under this law[1] you cannot make use of it unless you have reached majority (18) and you are a resident of Oregon; you must have a diagnosis from two different physicians and they must agree that you have six months or less left of life.  Doctors must discuss all other options with the patient and request notification of the family of the request. The patient must make two oral requests for the medication and these requests must be at least 15 days apart.  Afterwards, the patient must make a written request with two witnesses.  These witnesses cannot be family, beneficiaries, or medical personnel that treat the patient.  The doctors must agree that the patient is capable of making appropriate medical decisions.  The patient must wait 48 hours (2 days) after the written request to receive the prescription.  The doctor must mail or personally deliver the prescription to the pharmacy.  Finally, the doctor must contact the state health and human services department.  In other words, the Death with Dignity Act creates similar if not more significant hurdles for those wishing to undergo the procedure than the new abortion laws coming out of some states.

In Gonzales v. Oregon, 546 U.S. 243 (2006), the Supreme Court ruled that the use of the Controlled Substances Act to prosecute doctors prescribing the lethal doses under the Death With Dignity Act is beyond the Attorney General’s powers.  In essence, it was a question of federalism and state’s rights won the day.  The states retain their police power over the health (and delivery of health care) within their borders.  Therefore, the Death with Dignity Act withstood the challenge and remains good law.

Again, the constitutional question in Gonzalez focused on federal versus state powers, but the substance of the act dealt with the right to die.  Often when we consider issues under the rubric of the ‘right to die’, the case is connected to the right to privacy (i.e. Cruzan v. Director, MO DOH 497 US 26 (1990) or WA v. Glucksberg 521 US 702 (1997)).  A question that remains is does the Death with Dignity Act pass the undue burden test?  If physician’s assisted suicide is covered under the umbrella of the right to privacy can the states (OR and WA) place these significant obstacles in front of the terminal patient?[2]

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[1]http://public.health.oregon.gov/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Pages/ors.aspx

[2] Granted, if the Death with Dignity Act was deemed unconstitutional under this hypothetical it would suggest that there can be physician’s assisted suicide on demand.   But the application of the undue burden test to the strictures of the Death with Dignity Act seems like a good test of student understanding of the privacy material.

What is an undue burden?

Recently in Texas[1], the Texas House of Representatives passed a bill that requires women to undergo a sonogram prior to an abortion.  This procedure must occur 1-3 days before the abortion.  After viewing the image and hearing an explanation of it, she then could have her procedure after waiting at least 24 hours.

At first blush, this bill seems like a fairly innocuous invasion of privacy rights similar to many of the regulations found constitutional in the Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) case, although it is doubtful these same regulations would have passed muster under the trimester framework.  Consideration of this bill reveals that while the majority did not overturn Roe v. Wade, 410 U.S. 113 (1973) in Casey, the newer precedent provides a great deal more leeway to the states to require various types of regulations including more stringent types of informed consent i.e. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, (1976). (Recall, this case upheld the “core” of Roe and adopted O’Connor’s undue burden test in lieu of Blackmun’s trimester framework.)   After all, a sonogram provides a clinician with concrete information about the current level of embryonic growth.  There is no guesswork required, so this procedure avoids the problem of speculation noted by Powell in Akron v. Akron Center for Reproductive Health, Inc. 462 U.S. 416.  Again, prima facie, this requirement seems to place no undue burden on the woman, as an early sonogram can be performed in a doctor’s office or a clinic.

However, early sonograms are not the typical sonogram as noted by Representative Carol Alvarado during floor debate on the bill.[2]  An early ultrasound requires vaginal insertion of a medical probe.  The procedure is more invasive and uncomfortable, although not medically risky.  The larger question is whether this procedure would be an undue burden.  Since the undue burden test as written is vague, and the Court has rarely utilized the new standard, how do the lower courts apply it to this situation?  The context of this developing situation shows the wisdom of Scalia’s critique of the new standard, “I am certainly not in a good position to dispute that the Court has saved the “central holding” of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the “undue burden” test means.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Or if this bill passes, will it be challenged under a different variant of the right to privacy?  Is the state requiring a woman to undergo a medical procedure?  Does this violate the ancient right to refuse medical treatment?

Additionally, there is an issue of cost.  Who will foot the bill for the procedure?  If it is the woman or her insurance company, does this financial burden create an undue burden?  This question can easily seep into issues of federalism regarding the ACA and the role of Texas requiring a test that will affect a federal program.[3]

 

UPDATE: http://blogs.wsj.com/law/2011/10/26/court-blocks-ultrasound-requirement-in-nc-abortion-law/?mod=WSJBlog&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29&utm_content=Google+Feedfetcher

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[1] Reported by Reuters on 3/4/11. http://www.reuters.com/article/2011/03/04/us-texas-abortion-idUSTRE7230VK20110304 accessed on 3/17/11.

[2] Her exact words were this is not your typical “jelly on the belly”.

[3] In July of 2011, the law was challenged by the Center for Reproductive Rights.  The CRR takes a different tack here and challenges based upon First Amendment rights of speech between a doctor and a patient.  http://www.ama-assn.org/amednews/2011/07/18/gvsc0718.htm accessed on August 5, 2011.