Various Explanations of the Undue Burden Test

1) The undue burden test transforms the nature of the right from an unqualified fundamental right to a qualified fundamental right.  Instead of a woman’s right to choose whether or not to terminate a pregnancy (the right in Roe), there is now a woman’s right to be free of undue burdens imposed by the state in choosing whether or not to terminate a pregnancy (the right in Casey); or

2) The undue burden test reduces the level of scrutiny from strict scrutiny to intermediate scrutiny so the state has more state interests that meet the test and more available means to accomplish its interests; or

3) The undue burden test operates as a sorting mechanism that divides abortion regulations into two categories: those that impose less than an undue burden and those that impose an undue burden. If the abortion restriction imposes less than an undue burden, it will be upheld as long as it has a rational basis (minimum scrutiny); if it imposes an undue burden, it will only be upheld if it is a least restrictive means to achieve a compelling end (strict scrutiny).