Roe v. Wade decided that “in the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of ‘viability,’ a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.”

They used the strict scrutiny test to decide whether there was a “compelling governmental interest” in Texas’s law. This law prohibited abortion, except when the mother’s life was at stake. They placed the law under strict scrutiny- to see if there was a compelling interest or necessary justification- for the Texas legislature to make and enforce this abortion law. They made this ruling (see above) divided into trimesters. This was later found, in Dobbs v. Jackson, to have no legal or constitutional backing. 

We went from the strict scrutiny standard to defending abortion rights using the undue burden standard in Planned Parenthood v. Casey. To pass the standard, a law must have 1) compelling governmental interest, 2) narrowly tailored means, and 3) least restrictive means. This standard is used only when fundamental rights are at stake, and it was determined that 14th Amendment rights were infringed in Roe v. Wade. 

When we say narrowly tailored, we mean that the government is applying the laws in the least restrictive means possible, so that an excess of rights aren’t being violated or restricted. There has to be a reason for the restriction (compelling interest), and there has to be a method for restriction that is not overly burdensome when applied. Thirdly, if we can achieve a narrowly tailored/applied restriction, we can achieve the least restrictive application possible. The Texas law failed all three, according to the ruling in Roe. 

A highly contested decision, we jump to 1992 when abortion is considered further. Except in this case, we have the undue burden test, different from strict scrutiny. How did we manage to apply two different tests for the same issue? 

The change was simple: Roe set a precedent for abortion cases, and Casey questioned if a new law violated Roe. The application of abortion and the restrictions of abortion were different in both cases, despite both considering the same issue. The issue before the court in Casey was as follows: “Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade?”

Since the issue was different, they had to use a new test. The court built upon Roe, but they had to ask if these laws created an undue burden on a woman’s ability to receive an abortion. They had to ask if the government placed “unnecessary and substantial obstacles” in a deemed fundamental right- abortion. That’s one of the reasons Roe was overturned in 2022, because this case and other cases built on an already controversial precedent, a right that was already considered to have weak constitutional backing to begin with.

We get to the decision: that the Pennsylvanian laws did in fact create an undue burden on a woman’s right to obtain an abortion. This further Roe’s decision, but it would only be a matter of time until both cases were overturned. 

Those that overturned Roe used judicial restraint- they limited the trimester argument to the Constitution and confirmed that there is no basis for making such a decision. However, it is important to note that, before Roe’s overturning, two tests and two protections were added to the same right. It shows how variable constitutional law is, especially in cases when the Constitution is applied further than literal text.