Hastings Constitutional Law Quarterly


Ruth Burdick


In June 1992, the United States Supreme Court in Planned Parenthood v. Casey struck down the trimester framework of Roe v. Wade and replaced it with an undue burden standard to test the constitutionality of state abortion regulations. Several commentators predicted that the lower court application of the undue burden standard would be troublesome, and criticism of the standard became widespread. Since the Casey decision, the undue burden standard has now been utilized in a total of thirteen cases, and has been reviewed by four circuit courts.

This Note analyzes the Casey undue burden standard as implemented by the lower courts in abortion law cases, reviews the accuracy of the commentators' predictions, and examines the circuit court split that has developed over the application of the undue burden standard and the Salerno test. After placing the Casey undue burden standard in the framework of developing constitutional law regarding a woman's right to choose, and reviewing the scholarly predictions of problems anticipated to arise during application, the Note surveys the lower court decisions applying Casey's undue burden standard to state abortion laws, and evaluates the analyses used by these lower courts. Following this survey, the Note evaluates which of the scholarly predictions have in fact manifested, discusses the circuit court split over whether to disregard Casey and instead apply the Salerno test, and concludes that the current trend against applying Salerno will continue.