An undue burden arises if the purpose or effect of the state restriction on abortion has placed a substantial obstacle on a someone seeking an abortion of a non-viable fetus. If the person seeking an abortion of a non-viable fetus can prove that they would endure an undue burden as a result of a state restriction on abortion, then the statute imposing an undue burden will be struck down either entirely or partially. On the other hand, the government could pursue its interest in protecting the health of the pregnant person as long as the government’s interest has a rational relation and does not impose an undue burden.
The undue burden standard was established in Planned Parenthood v. Casey, 505 U.S. 833 (1992), where the Supreme Court upheld Roe v. Wade, 410 U.S. 113 (1973) but rejected the trimester framework because the court determined that the trimester framework misconceived the nature of the pregnant person’s interest and undervalued the state’s interest in potential life.
In Planned Parenthood v. Casey, the Pennsylvania Abortion Control Act required a person seeking an abortion to (1) give informed consent and be provided with information 24 hours in advance; (2) minors needed the informed consent of a parent; and (3) “a wife seeking an abortion must inform her husband of her plans prior to the procedure.” The first two prongs were upheld because the Supreme Court did not consider them unduly burdensome. However, the third prong was struck down because there were domestic abuse concerns, giving rise to an undue burden.
[Last updated in September of 2021 by the Wex Definitions Team]