Legal Definitions - undue burden

The term undue burden refers to a legal standard used by courts to determine if a government regulation or law places too great an obstacle on an individual's ability to exercise a constitutional right. If a regulation creates a "substantial obstacle" without sufficient justification, it is considered an undue burden and may be struck down by the courts.

This standard is most famously applied in cases involving abortion access. In this context, states may enact regulations concerning abortion as long as those regulations do not impose an undue burden on a person seeking to terminate a non-viable pregnancy. The government's interest in protecting health or potential life must be balanced against the individual's right, and regulations must not create a significant, unjustified barrier to accessing care.

Here are some examples illustrating the concept of an undue burden:

• Example 1: Geographic Access Restrictions

  Imagine a state passes a law requiring all clinics that perform abortions to be located exclusively in the northernmost, most rural county of the state, which is hundreds of miles away from the majority of the state's population centers. For residents in the state's most populous areas, this would necessitate extensive travel, multiple overnight stays, and significant time off work, making it extremely difficult and costly to access care.

  This law would likely be deemed an undue burden because it creates a substantial obstacle (extreme travel, significant cost, and time commitment) for individuals seeking an abortion. It effectively makes the constitutional right inaccessible for many, particularly those with limited financial resources or inflexible work schedules, without a compelling state interest that justifies such a severe restriction on access.

• Example 2: Cumulative Financial and Logistical Hurdles

  Consider a state law that mandates a person seeking an abortion must first undergo a series of three separate, non-medical counseling sessions, each conducted by a different state-approved counselor. These sessions must be paid for out-of-pocket at a high rate, with no public assistance available, and must occur on different days over a two-week period. Furthermore, each session must take place in a different government office located in separate cities.

  This scenario could constitute an undue burden due to the cumulative financial strain and the extreme logistical complexity. The requirement to attend multiple, costly, and time-consuming appointments in different locations places a significant financial and practical obstacle in the path of someone seeking an abortion, potentially making it unaffordable or logistically impossible for many, especially those with limited resources, childcare responsibilities, or transportation challenges.

• Example 3: Mandatory Delay and Information Requirements

  A state enacts a law that requires anyone seeking an abortion to first attend a mandatory, in-person "informational seminar" presented by state officials. This seminar is only offered once a month in the state capital, and after attending, individuals must wait 45 days before they are permitted to schedule an appointment for the procedure itself.

  This law would likely impose an undue burden. The requirement to travel to a single, infrequent seminar, followed by a lengthy mandatory waiting period, creates a substantial delay and logistical hurdle. This could push a pregnancy further along, potentially increasing health risks or making the procedure unavailable due to gestational limits. It places a significant obstacle on individuals with limited travel options, inflexible schedules, or those for whom a delay could have serious personal consequences, thereby hindering their constitutional right.