Undue burden standard

The undue burden standard is a constitutional test fashioned by the Supreme Court of the United States. The test, first developed in the late 1800s, is widely used in American constitutional law. [Stuart Streichler, "Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism," University of Virginia Press, 2005. ISBN 9780813923420]

One use of the standard was in "Morgan v. Commonwealth of Virginia," 328 U.S. 373 (1946). In a 7-to-1 ruling, Associate Justice Stanley Forman Reed fashioned an "undue burden" test to decide the constitutionality of a Virginia law requiring separate but equal racial segregation in public transportation. "There is a recognized abstract principle, however, that may be taken as a postulate for testing whether particular state legislation in the absence of action by Congress is beyond state power. This is that the state legislation is invalid if it unduly burdens that commerce in matters where uniformity is necessary—necessary in the constitutional sense of useful in accomplishing a permitted purpose." ["Morgan v. Commonwealth of Virginia," 328 U.S. 373, 377.]

More recently, the standard has been used in cases involving state restrictions on a woman's access to abortion. The standard was applied by Associate Justice Sandra Day O'Connor in her dissent in "City of Akron v. Akron Center for Reproductive Health," 463 US 416 (1983). O'Connor utilized the test as an alternative to the strict scrutiny test applied in "Roe v. Wade," 410 U.S. 113 (1973). The test was later used by a plurality opinion [As a plurality ruling, "Akron" does not carry the weight of law but is limited to the case in question only.] in "Planned Parenthood v. Casey," 505 U.S. 833 (1992), to uphold state regulations on abortion. [Gillian E. Metzger, "Unburdening the Undue Burden Standard: Orienting 'Casey' in Constitutional Jurisprudence," "Columbia Law Review." October 1994.] [Milton Konvitz, "Fundamental Rights: History of a Constitutional Doctrine," New ed., Transaction Publishers, 2007. ISBN 141280647X] [Adam Winkler, "Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts," "Vanderbilt Law Review," 2006.] In "City of Akron," O'Connor stated: "If the particular regulation does not 'unduly burden' the fundamental right, then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose." ["City of Akron v. Akron Center for Reproductive Health," 462 U.S. 416, 453.] Justice John Paul Stevens in "Casey" further defined undue burden by saying, " [a] burden may be 'undue' either because [it] is too severe or because it lacks a legitimate, rational justification." [Justice Stevens, concurring in part and dissenting in part, "Planned Parenthood v. Casey," 505 U.S. 833, 920.]

The undue burden test has been used to judge the constitutionality of tax laws, ["Test for Validity of Taxes on Governmental Instrumentalities," "Columbia Law Review," June 1933.] consumer product liability laws, [H. Duintjer Tebbens, "International Product Liability," 1st ed., Springer Publishing, 1980. ISBN 9028604693] affirmative action, [Jamillah Moore, "Race and College Admissions: A Case for Affirmative Action," McFarland & Company, 2005. ISBN 0786419849] voter registration laws [Scott Lauck, "Voter ID Decision Denounced As 'Activist'," "Missouri Lawyers Weekly," October 23, 2006.] and even anti-spam laws. [Juan Carlos Perez, "Judge Rules Maryland Spam Law Unconstitutional," "PC World," December 16, 2004.]

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