Monday, September 8, 2014
Federal Courts Grapple with "Undue Burden" Standard
The National Law Journal: Next Wave for Abortion Law Courts, by Tony Mauro:
Judges struggle to define "undue burden" standard
Slowly but surely, a new wave of abortion-related litigation is making its way to the U.S. Supreme Court, with the ultimate outcome uncertain.
A stop-and-start round of rulings and stays that blocked enforcement of new restrictions on abortion clinics in Texas last week was just the latest sign that, 41 years after Roe v. Wade, courts are still grappling with the issue. . . .
The National Law Journal (Op-Ed): Rulings Illuminate Abortion Standard, by Caitlin Borgmann:
With scant guidance from Supreme Court, lower courts are grappling with "undue burden" test
Onerous restrictions on abortion facilities are prompting lower courts to sit up and take notice. Late last month, federal judges in Texas and Louisiana blocked such laws from taking effect, at least temporarily.
Some courts, in evaluating the constitutionality of these laws, are interpreting the governing undue-burden standard — the U.S. Supreme Court's governing standard for the constitutionality of abortion regulations — in new ways that meaningfully consider the facts and purposes underlying the laws, as well as their real-world effects. The Supreme Court justices would do well to adopt these interpretations when they finally address one of these restrictions. . . .