July 15, 2016 Articles

Roe Revitalized: The Supreme Court Sharpens "Undue Burden" Analysis

Casey's "undue burden" standard has been enhanced, clarified, and given new energy, and the right to choose has been reaffirmed for the foreseeable future.

By Brandon Robb

With their decision in Whole Woman’s Health v. Hellerstedt, 579 U.S. ____ (2016) on June 27, 2016 (Justice Breyer writing for a five-member majority, including also Justices Kennedy, Ginsburg, Sotomayor, and Kagan), the Supreme Court reaffirmed the central premise ofPlanned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), decided 24 years earlier, which itself had reaffirmed and upheld the essence of the Court’s landmark decision recognizing a woman’s constitutional right to an abortion in Roe v. Wade, 410 U.S. 113 (1973), and set forth the “undue burden” standard for judging the constitutionality of restrictions on that right.

The 40-page decision dashed the hopes of many legislators around the country that the high court had changed sufficiently enough in the last quarter-century so as to curtail abortion access, and gave new clarity to undue burden analysis. In doing so, theCourt soundly rejected Texas’s argument for greater judicial deference on the question of which anti-abortion regulations advance a state’s interest in protecting maternal health in the case of pre-viability abortions per Casey’s framework; instead, the Court squarely placed on the judiciary the responsibility of weighing the actual medical benefits of challenged regulation, when the purpose “or effect” of such regulations creates a substantial obstacle to a woman’s constitutional right to choose.


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