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41 N.Y.U. Rev. L. & Soc. Change 121 (2017)
Seeing of the Forest for the Trees: Why Courts Should Consider Cumulative Effects in the Undue Burden Analysis

handle is hein.journals/nyuls41 and id is 127 raw text is: SEEING THE FOREST FOR THE TREES: WHY COURTS SHOULD CONSIDER CUMULATIVE EFFECTS IN THE UNDUE BURDEN ANALYSIS MARLOW SVATEK I. INTRODUCTION............... .............................. ...... 121 II. THE UNDUE BURDEN STANDARD .................................... 123 III. CUMULATIVE EFFECTS: COMPETING APPROACHES ....................125 A. Courts That Do Not Consider Cumulative Effects ........ .......... 125 B. Courts That Do Consider Cumulative Effects ........... ........... 129 IV. ARGUMENT FOR CONSIDERING CUMULATIVE EFFECTS OF MULTIPLE ABORTION RESTRICTIONS ..................................... ..... 132 A. Practical Considerations. ................................. 133 B. Supreme Court Precedent Endorses the Consideration of Cumulative Effects................... .................... ...... 134 C. Argument From Analogy: The Dormant Commerce Clause ................... 137 V. CONCLUSION ..................................................... 141 I. INTRODUCTION States have imposed an unprecedented number of abortion restrictions in recent years.1 These restrictions include pre-viability bans on abortion, informed consent procedures, mandatory waiting periods, and even mandatory ultrasounds.2 States have also enacted less obvious, but equally odious, regulations on abortion providers in an effort to regulate them out of existence. 00 Law clerk to the Honorable Jon S. Tigar of the U.S. District Court for the Northern District of California. J.D., University of Chicago School of Law, 2016, with honors; B.A., University of Miami, 2011, with honors. I am very grateful to Lorie Chaiten of the ACLU of Illinois, whose reproductive health and justice seminar inspired me to write this paper, and to the editors at the NYU Review of Law & Social Change for their invaluable feedback. 1. See Heather D. Boonstra & Elizabeth Nash, A Surge of State Abortion Restrictions Puts Providers-and the Women They Serve-in the Crosshairs, 17 GUTTMACHER POL'Y REv. 9 (Jan. 1, 2014), http://www.guttmacher.org/pubs/gpr/17/1/gprl70109.html (describing the unprecedented wave of state-level abortion restrictions since 2011). Specifically, between 2011 and 2013, legislatures in thirty states enacted 205 abortion restrictions. Id. 2. Id. at 12-13 (explaining that nine states ban abortion at twenty weeks and two states enacted laws that ban abortion even earlier in pregnancy). 121 Imaged with Permission of N.Y.U. Review of Law & Social Change

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