In a short “Reaction” commentary on the Harvard Law Review, Professor Caitlin Borgmann argues that the courts need to do a better job of closely examining the facts underlying abortion legislation and that they can do so under the governing undue burden standard. She writes,
If courts looked more skeptically at the factual foundations supposedly necessitating abortion laws, they would often discover those foundations to be weak if not totally absent. Whether this is because of legislative insincerity, inattention, or bias is irrelevant. Factually unsupported laws that infringe constitutionally protected rights should not be allowed to stand. Such a shortcoming infects an entire law and warrants its wholesale invalidation.