The Emerging Use of a Balancing Approach in Casey’s Undue Burden Analysis

This Article highlights an important shift occurring in the analytical framework used to assess the constitutional validity of abortion related laws. Specifically, the Article analyzes the adoption by lower courts of a significant modification to the undue burden analysis developed by Justice O’Connor in Planned Parenthood of Southeastern Pennsylvania v. Casey. As described by Justice O’Connor, the undue burden analysis focuses on the purpose or legislative basis of an abortion related law, and the effect of the law. If the law is reasonably related to a legitimate state interest, it should be upheld unless the effect of the law presents a substantial obstacle to a woman’s liberty interest in being able to legally decide to have an abortion before viability. Lower courts have recently introduced a balancing inquiry into the Casey analysis, at least as to an abortion related law enacted to serve state interests in health and safety, e.g., laws designed to prevent the potential for substandard care in the context of abortion. The balancing affects both steps of the Casey analysis. In assessing the legislative basis for the law, courts are requiring empirical proof that the law furthers state interests, and also are assessing the extent to which the interests are likely to be advanced. In assessing the effect of the law, a finding that the state has not produced sufficient empirical evidence showing a strong relationship between the law and state interests triggers a diminution of the concept of substantial obstacle. Courts adopting this balancing approach have advanced a number of theories in support of its use, which largely draw on aspects of Casey and Gonzales v. Carhart. This Article assesses the merits of the theories and concludes that, although a refinement to the traditional understanding of the Casey analysis is appropriate, the balancing approach has no support in Supreme Court precedent and represents a move back toward aspects of abortion jurisprudence rejected by a clear majority of the Court in Casey.