Undue Burdens

In its 1992 decision in Planned Parenthood v. Casey, the Supreme Court reaffirmed the fundamental right to an abortion while introducing a new "undue burden" standard that has since been used to analyze infringements on that right. However, current events demonstrate that the undue burden standard is not a one-size-fits-all protection against obstacles to abortion. Recent restrictions - such as laws imposing new requirements on medication abortion, laws that require doctors to perform medically unnecessary ultrasounds or read ideological "informed consent" scripts to patients, and TRAP laws that target abortion providers for unwarranted and burdensome regulation - cumulatively, and sometimes individually, threaten to shut down many or most clinics in large swaths of the country. These challenges present new legal questions, including how the First Amendment should protect the speech between a doctor and patient and whether states can arbitrarily treat abortion differently than other comparable medical procedures. In light of the current composition of the court, how can advocates best preserve the fundamental protections afforded in Roe and Casey? 

 

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