Legal Definitions - undue-burden test

The undue-burden test is a legal standard used by the U.S. Supreme Court to evaluate the constitutionality of laws that regulate abortion. Under this test, a law is considered unconstitutional and will be struck down if it places a substantial obstacle in the path of a woman seeking to exercise her right to obtain an abortion.

This test replaced the earlier "trimester analysis" that was established in the landmark Roe v. Wade decision. The undue-burden test acknowledges a state's interest in regulating abortion, but it prohibits regulations that create significant barriers to access.

Here are some examples of how the undue-burden test might be applied:

• Example 1: Medically Unnecessary Facility Requirements

  Imagine a state passes a law requiring all clinics that perform abortions, regardless of the stage of pregnancy, to meet the exact same structural and staffing standards as a full-service hospital or ambulatory surgical center. These requirements might include specific hallway widths, air filtration systems, or minimum numbers of operating rooms, even for early-term procedures that are typically performed in a doctor's office setting.

  How it illustrates the term: If these regulations are not medically necessary for the safety of the procedure and are so expensive to implement that many existing clinics are forced to close, it could be argued that the law creates a substantial obstacle. The closure of clinics would significantly reduce the availability of abortion services, making it much harder for women, especially those in rural areas or with limited financial resources, to access care. This reduction in access would constitute an undue burden.

• Example 2: Extended Mandatory Waiting Periods and Multiple Trips

  Consider a state law that mandates a 72-hour waiting period between a woman's initial consultation with a doctor and the abortion procedure itself. Furthermore, the law requires that both the consultation and the procedure must occur at the same facility, and that the woman must personally appear for both appointments.

  How it illustrates the term: For a woman living far from the nearest clinic, or one who has limited time off work, childcare responsibilities, or financial constraints for travel and lodging, this requirement could pose a substantial obstacle. Having to make two separate, lengthy trips over several days, incurring additional costs and logistical challenges, could effectively prevent her from obtaining an abortion, thereby creating an undue burden.

• Example 3: Restrictive Parental Consent Laws for Minors

  Suppose a state enacts a law requiring all minors to obtain written consent from both biological parents before undergoing an abortion. Crucially, this law includes no provision for a "judicial bypass," which would allow a minor to seek approval from a judge instead of a parent in cases where parental consent is not feasible or safe (e.g., due to abuse, neglect, or a parent being absent).

  How it illustrates the term: For a minor who is estranged from one or both parents, or who fears abuse if she informs them, the inability to obtain consent without a judicial bypass would present an insurmountable, or substantial, obstacle. This lack of an alternative path would effectively deny her the ability to access abortion services, thus imposing an undue burden on her constitutional right.