The Beast of Undue Burden: Evaluating the Burden on the Physician in Planned Parenthood of the Heartland V. Heineman

IntroductionIn Planned Parenthood of the Heartland v. Heineman, the U.S. District Court for the District of Nebraska in 2010 issued a preliminary injunction against the enforcement of LB 594, a state legislative bill that imposed new and greater requirements on physicians for pre-abortion screening and counseling.1 The enjoined bill sought to broaden the scope of physicians' responsibilities by providing new definitions for the "complications" and "risk factors" that physicians must discuss in order to obtain a patient's informed consent; the bill also sought to create greater incentives for women to bring suit against abortion providers.2 LB 594 redefined "complications" to include any adverse reaction- physical, psychological, or emotional-reported in any peer-reviewed journal.3 Similarly, "risk factor" was expanded to mean any factor, published in any peer-reviewed journal, whether physical, psychological, emotional, demographic, or situational, associated with one or more complications.4 Incentives to bring suit included making damages available for wrongful death of the fetus, putting the burden of proof on the physician, and allowing the woman to bring suit based on emotional suffering, injury to reputation, and even humiliation.5Although the scope of LB 594 made compliance a near impossibility for doctors, ensuring its likely invalidation, the court's analysis of the burden placed on physicians represented a shift in abortion jurisprudence. 6 The bill was similar to legislative attempts in other states to effectively prohibit abortion following the U.S. Supreme Court decisions in Planned Parenthood of Southeastern Pennsylvania v. Casey, in 1992, and Gonzales v. Carhart, in 2007.7 In Casey, the Court held that a direct regulation on women seeking abortions-in that case, a spousal consent requirement- was unconstitutional, but changed the standard for evaluating regulations on abortion from strict scrutiny to an undue burden standard.8 Gonzales further loosened that standard, holding that a regulation limiting physicians' ability to perform intact dilations and evacuations was not an undue burden on women, even though the blanket prohibition would affect access to those procedures.9 In Planned Parenthood of the Heartland, the Nebraska court found that LB 594's restrictions would have created an undue burden for women seeking abortions, basing that determination not on direct limitations to women seeking abortions, but on limitations to physicians and practitioners.10In Planned Parenthood of the Heartland, the court looked to the logical (rather than direct) effect of the restrictions, reasoning that legislation that puts an undue burden on physicians necessarily also creates an undue burden on women seeking abortions since such legislation would result in a loss of access to providers willing to perform the procedure. 11 Therefore, increased obligations on physicians, such as requirements to perform complex patient evaluations, or risks to physicians, such as the danger of crippling litigation, could be an undue burden on the right to abortion if those obligations and risks prevent access to abortions.12 In making that determination, the court helped to close a logical gap left by previous cases and allowed for more robust judicial evaluation of abortion legislation.13Part I of this Comment provides a brief summary of the provisions of the proposed statute LB 594 and the court's evaluation of its purposes and effects.14 Part II provides a brief legal history of abortion jurisprudence to contextualize the decision reached in Planned Parenthood of the Heartland.15 Finally, Part III examines the court's determination that LB 594 would have likely placed an undue burden on women seeking abortions, and argues that to determine whether a regulation places an undue burden on the constitutional right to abortion, courts should evaluate the effect both on the physician and on the woman.16I. The U. …