Law School Noob: Understanding the "undue burden" principle in Parenthood v. Casey and Roe v. Wade

Thursday, March 10, 2022

Understanding the "undue burden" principle in Parenthood v. Casey and Roe v. Wade

The undue burden principle is a legal standard that the Supreme Court of the United States uses to determine whether an abortion restriction violates the Constitution. The test was established in the 1992 case Planned Parenthood v. Casey, which reaffirmed the right to abortion established in Roe v. Wade (1973).

The undue burden test asks whether a law has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Viability is the point at which a fetus is able to survive outside the womb, typically around 24 weeks of pregnancy.

A law that imposes an undue burden on women seeking abortion is unconstitutional. This means that the law cannot be enforced. Some examples of laws that have been struck down as unconstitutional under the undue burden standard include:

Parental notification laws, which require women under a certain age to notify their parents before having an abortion

Spousal notification laws, which require women to notify their husbands before having an abortion

Waiting periods, which require women to wait a certain amount of time before having an abortion

Targeted regulation of abortion providers (TRAP) laws, which make it difficult for abortion providers to operate

The undue burden test is not a strict scrutiny standard. This means that states are not required to show a compelling interest in order to justify an abortion restriction. Instead, states must only show that the restriction has a rational basis.

The undue burden test is applied to abortion restrictions before the fetus attains viability. After viability, states may regulate abortion more extensively, but they may not ban abortion outright.

The undue burden test is not a mathematical formula. It is a flexible standard that judges must apply on a case-by-case basis.

The undue burden standard is a complex and controversial legal test. Critics argue that it is too vague and allows judges to make subjective decisions about whether a law is constitutional. Supporters of the test argue that it is necessary to protect the right to abortion while also allowing states to regulate abortion in a reasonable way.

The undue burden standard is likely to continue to be debated in the years to come. It is a key legal principle that will shape the future of abortion rights in the United States.

Here are some additional points about the undue burden principle:

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