William & Mary Bill of Rights Journal


Mark Strasser


The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so that it accurately conveys the conditions under which regulations will be upheld. Otherwise, the Court will not only continue to mislead the country about the content and breadth of abortion rights, but will also further convince the populace that the Court is simply set on promoting a political agenda.

Part I of this Article discusses how the term “undue burden” was used and what it meant in several cases preceding Planned Parenthood of Southeastern Pennsylvania v. Casey. Part II discusses how the undue burden test was construed in Casey and subsequent cases, noting some of the internal inconsistencies in the Court’s approach. The Article concludes that, unless the Court clarifies what the test is and then applies it consistently, courts and state legislatures will continue not to understand what the Constitution requires, and the Court will not only continue to be criticized both by those favoring and those disfavoring abortion rights but will also continue to undermine public confidence in the Court’s impartiality.