Women’s right to access abortion remains one of the most hotly contested legal issues in the United States. The current constitutional test states that an abortion regulation is unconstitutional under the Fourteenth Amendment if it imposes an “undue burden” on the right to an abortion. But determining whether a burden is undue confounds legislatures and courts alike. And scholarship on the undue burden standard has, for the most part, focused on offering critiques of the standard rather than discussing how the existing standard should be understood and applied.
This Note fills that gap. It argues, first, that the way the undue burden standard currently operates—considering each challenged provision in isolation—allows incremental encroachment on the right to access abortion. States can chip away at the right by passing regulations that individually do not impose an undue burden because the current understanding of the standard does not allow consideration of the landscape of abortion regulations in its entirety. It then proposes an alternative reading of the undue burden standard that avoids this problem: The standard should ask whether women seeking abortions face an undue burden by considering the entire regulatory regime around abortion. The standard, it argues, should compare the burdens imposed on abortion access to those imposed on other medical procedures based on analogous state interests. Deviations based on state interests unique to abortion must be assessed against that baseline. It concludes by exploring the benefits of this approach, namely, that it prevents states from chipping away incrementally at abortion rights, improves administrability of the standard, centers the rightholder in the analysis, and provides clearer rules for regulators and courts alike.