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UCLA Journal of Gender and Law

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What is an "Undue Burden"? The Casey Standard as Applied to Informed Consent Provisions


The existing scholarship on abortion rights focuses mainly on what is wrong with the state of legislative or judicial provisions surrounding the right to choose.  In addition to highlighting a problem, this article proposes a solution.  It argues, in a call to action, that the undue burden standard should be consistently raised by advocates and addressed by courts.  Thus, it should run parallel to all other challenges.  This article provides a roadmap for advocates, both in text and in hypothetical application to a recent Fifth Circuit case, regarding how to raise the standard in full when dealing with informed consent provisions.  This article shows, by example, that a fuller application of the undue standard can and will change the outcome of cases dealing with pre-abortion ultrasound provisions and fetal pain laws.  The article is not overly optimistic about what this changed standard may mean for the sheer number of abortion laws proposed, but argues that more attention to all aspects of the standard is necessary for future success in challenging informed consent provisions.  My hope is that this piece will contribute to the conversation in the public interest field about taking risks in reproductive rights advocacy, and to the actions taken during the litigation of challenges to informed consent laws.

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