Protecting the One Percent: Relevant Women, Undue Burdens, and Unworkable Judicial Bypasses

By:  Alexandra Rex


The purpose of this Note is to analyze one widely enacted category of abortion regulations—parental involvement laws—and the effect of such regulations on their targeted group—pregnant minors. According to the Supreme Court, abortion regulations are constitutional only if they satisfy the undue burden standard, as expressed in Planned Parenthood v. Casey. By relying on the empirical evidence and reasoning the Court used to invalidate the spousal notification provision of the Pennsylvania statute at issue in Casey, this Note asserts that parental involvement laws, despite inclusion of bypass provisions, pose substantial obstacles for the group of women for whom the statutes are directly relevant. Because of the Casey Court’s emphasis on the relevant group of women—“the one percent of women upon whom the statute operates”—the substantial obstacles produced by these parental involvement laws constitute an impermissible undue burden. Unlike scholars who find the laws onerous but have attempted to invalidate them on other grounds, this Note goes back to the basics, unraveling the undue burden standard and its requirements, to argue that parental involvement laws are unconstitutional under Casey’s undue burden standard, based on empirical evidence demonstrating the detrimental impact of such laws on affected minors, as well as the unworkability of judicial bypass provisions. This Note concludes by discussing alternative remedies to parental involvement statutes in light of minors’ constitutional right to choose abortion and the state’s legitimate interest in protecting immature minors.


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