THE UNDUE BURDEN STANDARD

Since its seminal ruling in Roe v. Wade (1973), the Supreme Court has recognized that the Constitution protects the fundamental right to choose abortion. The undue burden test is the legal standard that courts use to determine whether an abortion restriction violates the Constitution. The test dates back to Planned Parenthood v. Casey (1992) (“Casey”), in which the Supreme Court heard a challenge to an omnibus Pennsylvania law that imposed a 24-hour waiting period on women seeking abortion, parental consent and spousal notice mandates, and other requirements. Building on and modifying its earlier cases in which it found that states may pass limited restrictions on abortion depending on the stage of pregnancy, the Court adopted the undue burden standard to separate permissible restrictions from those that are unconstitutional. The undue burden test replaced the legal framework that the Court had used in Roe v. Wade, which relied on a trimester system allowing more state regulation as pregnancy advanced.

Excerpt from The Center for Reproductive Rights