One use of the standard was in
Morgan v. Virginia, 328 U.S. 373 (1946). In a 7-to-1 ruling,
Associate Justice Stanley Forman Reed fashioned an "undue burden" test to decide the constitutionality of a
Virginia law requiring
separate but equal racial segregation in public transportation. "There is a recognized abstract principle, however, that may be taken as a postulate for testing whether particular state legislation in the absence of action by Congress is beyond state power. This is that the state legislation is invalid if it unduly burdens that commerce in matters where uniformity is necessary—necessary in the constitutional sense of useful in accomplishing a permitted purpose." More recently, the standard has been used in cases involving state restrictions on a woman's access to
abortion. The standard was applied by Associate Justice
Sandra Day O'Connor in her dissent in
City of Akron v. Akron Center for Reproductive Health, 462 US 416 (1983). O'Connor utilized the test as an alternative to the
strict scrutiny test applied in
Roe v. Wade, 410 U.S. 113 (1973). The test was later used by a plurality opinion in
Planned Parenthood v. Casey, 505 U.S. 833 (1992), to uphold state regulations on abortion. In
City of Akron, O'Connor stated: "If the particular regulation does not 'unduly burden' the fundamental right, then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose." Justice
John Paul Stevens in his partial concurrence, partial dissent to
Casey further defined undue burden by saying, "[a] burden may be 'undue' either because [it] is too severe or because it lacks a legitimate, rational justification." == Test usage ==