Bench Memos

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Ayotte and the “Undue Burden” Standard


Just a question: Ayotte would seem to stand for the proposition that a court encountering a statute that imposes an “undue burden” on abortion should explore whether the burdensome applications of the statute can be enjoined and the remainder of the statute left to operate. Why, then, shouldn’t the Court have adopted the same approach in its 1992 ruling in Planned Parenthood v. Casey with respect to Pennsylvania’s spousal-notification requirement? Instead of invalidating the requirement in toto, why didn’t it explore whether to bar enforcement of that requirement in those instances it regarded as objectionable?


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