Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt

62 Pages Posted: 9 Mar 2017  

Mary Ziegler

Florida State University - College of Law

Date Written: March 9, 2017


The Supreme Court’s recent decision in Whole Women’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

Keywords: undue burden, abortion, legal history, Whole Woman's Health v. Hellerstedt

Suggested Citation

Ziegler, Mary, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt (March 9, 2017). FSU College of Law, Public Law Research Paper No. 831. Available at SSRN: or

Mary Ziegler (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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