How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine
45 Hastings Law Journal 867
95 Pages Posted: 15 Oct 2020
Date Written: 1994
Abstract
Part I of this Article describes the Casey decision and the strong disagreement between the joint opinion and its critics on the Court as to the legitimacy of the undue burden test. This Part interprets and rationalizes the undue burden standard in terms of its definition and application in the joint opinion. Part II demonstrates that, contrary to the protests by the Casey dissenters, the undue burden test is firmly rooted in fundamental rights jurisprudence. In support of this contention, explicit and implicit frameworks developed by the Court for determining whether a right has been infringed are identified and compared to the undue burden standard. Part II also suggests how an analysis of what constitutes an infringement of a right can be used to explain, in doctrinal terms, both the result in Casey and a great deal of the Court's fundamental rights case law that would otherwise appear to be unprincipled and inconsistent. This Article concludes, in Part III, by arguing that a focus on the infringement of rights is necessary to accommodate the movement toward a more expansive and inclusive definition of rights reflected in the case law of the last four decades. By carefully considering what constitutes an infringement of a particular right, courts can more precisely and effectively define the constraints imposed by the Constitution on state power and the protection provided by the Constitution to individual rights.
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