Report: The Undue Burden Standard after Whole Woman’s Health v. Hellerstedt

(REVISED 08.09.18) The Supreme Court delivered a landmark victory in Whole Woman’s Health v. Hellerstedt on June 27, 2016, striking down the two abortion restrictions under challenge in the case, preserving access for thousands of Texas women, and signaling that similar laws across the country are also unconstitutional. The decision had an equally important effect on the constitutional law that protects the right to choose abortion. Whole Woman’s Health v. Hellerstedt (“Whole Woman’s Health”) turned on whether the “undue burden” test requires courts to give meaningful review to laws that restrict abortion, instead of deferring to legislative claims about how the laws function. Since adopting the undue burden test in its 1992 decision Planned Parenthood v. Casey, the Court had not clarified how courts should apply key features of the test. Whole Woman’s Health supplied the missing guidance: the undue burden test is a robust check on legislatures that requires courts to examine whether abortion restrictions have tangible benefits that outweigh their real world burdens and strike them down if they fall short.  (Download the full report below to read more.)