Substantive Due Process: Abortion and the Fourteenth Amendment Flashcards
- Roadmap of Abortion Law
a) Griswold: recognition of a right to privacy in several possible amendments
b) Roe: substantive due process and that is okay (not exact words). Affirms Griswold’s right to privacy as being understood to be part of liberty that is in the 14th amendment. Established trimester approach.
c) Casey: establishes undue burden analysis. Also says the right comes straight out of Due Process and can put aside Griswold aggregation.
i) Substantive Due Process becomes the law starting from this case.
- Roe v. Wade (1973)(p. 431)
a) Court held state criminal abortion laws that exempt from criminality only life-saving procedures on the mother’s behalf and that do not take into consideration the state of the pregnancy or other interests, are unconstitutional for violating the DPC
b) Rule: DPC protects the right to privacy, including a woman’s right to terminate her pregnancy, against state action.
i) The right to privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
ii) Relevance of the issue as to whether or not a fetus is a person = is there compelling state interest?
(1) The compelling state interest in respect to the health of the mother comes at the point of viability.
(a) Court seems to think that the abortion decisions is primarily a medical decision and the basic responsibility must rest with the physician.
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)(p.456)
a) State law required that women seeking an abortion obtain informed consent, wait 24 hours, get consent of husband if married, and if minors, obtain parental consent.
b) Held: Court held that many portions of the law did not violate due process. Only struck down requirement that women notify their husbands
c) Rule: (1) a woman has the right to choose to have an abortion before viability and to obtain it without undue interference from the state; (2) A confirmation of the state’s power to restrict abortions after fetal viability if the law contains exception for pregnancies which endanger a woman’s life or health; (3) The principle that the state has a legitimate interest from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
i) Stare Decisis: the fact that something was decided in Roe creates a presumption in its favor
(1) Rule: A decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided, i.e., changed circumstances or the facts upon which the case was premised have been proven untrue.
(2) None of the standard respond for overruling precedent applies, therefore stand by Roe.
ii) Trimester Framework –> undue burden. Court imposed a new standard to determine that validity of laws restricting abortions.
(1) The new standards asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” which is defined as a “substantial obstacle in the path of a women seeking an abortion before the fetus attains viability.”
(2) Liberty cannot be restricted to place an undue burden on a women’s choice to have an abortion (the clear standard from Roe is gone)
(3) In application, the undue burden test allows the state to have other interests other than health and safety
(4) Concern on both sides with what the undue burden test will really be.
- Gonzales v. Carhart (2007)(p. 478)
Partial-Birth Abortion Ban Act
a) Court held the act was constitutional under DPC - The majority found that the act applied only to a specific method of abortion, was not unconstitutionally vague, overboard or an undue burden on the decision to obtain an abortion.
i) Undue burden reasoning: there is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women. The Court’s precedents instruct that under these circumstances the Act can survive this facial attack. The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude that this facial attack that the Act does not impose an undue burden.
(1) “There can be no doubt the government has an interest in protecting the integrity and ethics of the medical profession.”
(2) “It was reasonable for Congress to think that partial-birth abortion, more than standard D & E, undermines the public’s perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world.
