The Supreme Court’s Just Application of the Undue-Burden Standard for Abortion

With its ruling today in the Texas abortion case Whole Woman’s Health v. Hellerstedt, the Supreme Court reinvigorated the “undue burden” standard, and with it the fundamental right to abortion. “Undue burden” is the test that courts have been using since 1992 to evaluate whether state laws on abortion are constitutional. In Planned Parenthood v. Casey that year, the Court declared, “An undue burden exists and therefore a provision of law is invalid if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” As a bulwark protecting abortion rights, that language sounded fairly solid: the application of the purpose-or-effect test to abortion jurisprudence was one of the signal contributions of Sandra Day O’Connor, and it had the markings of her pragmatic approach.

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