Document Type

Article

Publication Date

1994

Center/Program

Center for Constitutional Governance

Abstract

"Liberty finds no refuge in a jurisprudence of doubt."1 With these words in the 1992 case, Planned Parenthood v. Casey, the Supreme Court ushered in a new era of abortion regulation.2 Speaking through a joint opinion authored by Justices O'Connor, Kennedy, and Souter, the Court indicated that from this point forth abortion regulations would be judged by an "undue burden" standard. According to this standard, an abortion regulation is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion" of a nonviable fetus. 3

The Justices who wrote Casey were explicit in their desire to resolve the judicial debate over constitutional protection of abortion. This debate had become increasingly contentious in recent years as several Justices forcefully expressed their willingness to overturn the 1973 Roe v. Wade4 decision constitutionalizing abortion. Casey, however, may have the opposite effect. The joint opinion made clear that the Constitution does protect a woman's right to choose abortion prior to viability of the fetus. But the extent of this protection was left in doubt as a result of the Court's failure to provide methods for determining when an undue burden on abortion exists.

This Note attempts to rectify this deficiency in the Casey undue burden standard by developing a new undue burden methodology based on the analytical approaches used in other areas of constitutional jurisprudence. Three approaches-the two-tiered inquiry of the dormant Commerce Clause,5 the content-neutral, traditional forum analysis of the First Amendment,6 and the endorsement test of the Establishment Clause 7 - are especially similar to the undue burden standard outlined in Casey and can provide methods for evaluating the purpose and effect of abortion regulations.

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