Abortion

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• Abortion

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Framing the Analysis

• Does a woman have a fundamental right to
  terminate her pregnancy
• When does state regulation of abortion amount to
  a deprivation of that right
• Is the state interest compelling (ENDS)
• Is the challenged regulation (MEANS) narrowly
  tailored to promote the ENDS

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Framing the Analysis

• Does a woman have a fundamental right to
  terminate her pregnancy
• When does state regulation of abortion amount to
  a deprivation of that right
• Is the state interest compelling (ENDS)
• Is the challenged regulation (MEANS) narrowly
  tailored to promote the ENDS

Basic issue here is one of constitutional
interpretation
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Framing the Analysis

• Does a woman have a fundamental right to
  terminate her pregnancy
• When does state regulation of abortion amount to
  a deprivation of that right
• Is the state interest compelling (ENDS)
• Is the challenged regulation (MEANS) narrowly
  tailored to promote the ENDS

Not all regulations are unduly burdensome (e.g.
person performing abortion must be MD)
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Framing the Analysis

• Does a woman have a fundamental right to
  terminate her pregnancy
• When does state regulation of abortion amount to
  a deprivation of that right
• Is the state interest compelling (ENDS)
• Is the challenged regulation (MEANS) narrowly
  tailored to promote the ENDS

Surely saving another life is a compelling
interest (if a fetus is considered a human life)
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Framing the Analysis

• Does a woman have a fundamental right to
  terminate her pregnancy
• When does state regulation of abortion amount to
  a deprivation of that right
• Is the state interest compelling (ENDS)
• Is the challenged regulation (MEANS) narrowly
  tailored to promote the ENDS

Prohibiting abortions would be the only way to
save unborn life but other state interests might
be served by less restrictive means
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Roe v. Wade (1973)

• Texas law prohibits abortion at any time during
  pregnancy except to save the life of the mother

• Similar laws in all states dating to late 19th
  C.
• Historical practice
• Most ancient regimes allowed abortion despite
  Hippocrates admonition
• Abortion allowed at common law at least through
  quickening (movement of fetus)
• Liberalization in US states per Model Penal Code

oath
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Roe v. Wade (1973)

• Finding a Right of Privacy
• Interpretivist
• Penumbras of Bill of Rights
• Dynamic (family/procreation)
• Non-Interpretivist
• Ninth Amendment
• Due Process liberty
• imposes a distressful life and future
• mental physicial emotional economic health
  affected
• Rehnquist (dissent)
• Not privacy qua freedom from govt snooping
• How is this different than Lochner era

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Roe v. Wade (1973)

• Finding a Right of Privacy
• Interpretivist
• Penumbras of Bill of Rights
• Dynamic (family/procreation)
• Non-Interpretivist
• Ninth Amendment
• Due Process liberty
• imposes a distressful life and future
• mental physicial emotional economic health
  affected

if absolute even compelling state interests
would be inadequate

• Absolute or Qualified
• No other constl right is absolute even when
  constitution is (congress shall make no law ...)

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Roe v. Wade (1973)

• State Interests
• Victorian morality
• Medical safety
• Protecting prenatal life
• Is fetus a person within meaning of 14th amend
• Textualist
• Originalist
• Non-interpretivist
• Natural law (Gods law)
• When does fetus become a person

conception
birth
quickening
viability
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Roe v. Wade (1973)

• When does life begin
• Medical / Scientific
• Philosophical
• Religious
• Catholic Protestant Jewish Budhist Confucian
• Legal
• Why isnt Texas free to adopt any 1 of the many
  conflicting opinions on this issue
• !st Amd establishment of religion
• State has burden of proof cant just guess

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Roe v. Wade (1973)

• Compelling Interests
• Protecting fetal life
• Protecting maternal health
• Protecting the potentiality of human life
• How is this different than protecting fetal life
• At what gestational point does it become
  compelling
• Pre-conception (contraceptives can be made
  illegal)
• Conception (all abortion can be made illegal)
• When fetus could survive outside of mother
  (viability)
• At this point the fetus can be said to have an
  independent existence at least in theory

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Roe v. Wade (1973)

• Compelling Interest
• Maternal health
• Potential life

• Necessary Means
• Health regulation
• Prohibition

Viability 28 weeks
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Roe v. Wade (1973)
no (special) regulations permitted
reasonable reg of medical procedures
may prohibit except where medically neces.
Viability 28 weeks
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Roe v. Wade (1973)

• Political consequences of Roe
• Nationalized the issue
• Scalia contends that state resolution is more
  stable
• Inflamed politics (decided elections)
• Engendered compacency by womens rights

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Webster v. Rep. Health Svcs (1989)

• Missouri law prohibiting use of state funds or
  facilities
• Abortion is not a positive right
• Rebutable presumption of viability at 20wks
• Does this deprive the right to abortion
• At what point does regulation become obstruction
• Does it depend on why the state imposed the
  requirement
• Criticism of Roe
• Rigidity of trimester framework
• Compelling interest in potential
  life throughout womens pregnancy

4 votes to overturn Roe OConnor swings
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Planned Parenthood v. Casey (1992)

• Pres. Bush names Souter Thomas to replace
  Brennan Marshall
• Kennedy switches gt 5 votes to retain Roe
• OConnor/Kennedy/Souter Stevens Blackmun
• Right to abortion found in 14th DP liberty
• Serves not merely to incorporate Bill of Rights
• Independent source of rights
• Rejects Scalia fn.6 (most specific level of
  generality)
• Right to choose is attribute of personhood
• an attribute of womanhood

equal protection
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Planned Parenthood v. Casey (1992)

• Role of Stare Decisis
• In developing right of privacy/choice Court is
  engaged in traditional common law function
• natural evolution of family/privacy rights
• yet abortion is qualitatively different lt
  Rehnquist
• Rule of law requires continuity
• Creates expectancies legal landscape of society
• How has society changed in response to Roe
• Economic / womens stauts
• Even if precedent wrongly decided or unsound
• Changed conditions

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Planned Parenthood v. Casey (1992)

• Significance of Joint Opinion
• Blackmun (concur)
• Personal essay (from the heart)
• More (broad) textualist than plurality
• Physical invasion / conscription of womens
  bodies
• Meaning of Life (belittled by Scalia)
• Gender equality
• Scalia (dissent)
• We should get out of this area where we have no
  right to be and where we do neither ourselves
  nor the country any good

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Planned Parenthood v. Casey (1992)

• Scalia (dissent)
• Analogy to Dred Scott (slavery)

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Planned Parenthood v. Casey (1992)

• Redrawing the line between privacy/state
• Replace trimester framework with viability
• Why doesnt stare decisis apply here as well
• Is Rehnquist right that only a shell of Roe
  remains
• Adopts a bit of Webster
• State has interest in potential life through
  all stages of a womans pregnancy
• Manifestation of state interest
• May proselytize (prefer birth over abortion)
• Can make abortion more difficult to obtain
• So long as not designed to strike at right
  itself

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Planned Parenthood v. Casey (1992)

• Undue Burden test
• Only where state regulation imposes an undue
  burden on a womans ability to decide will be
  subject to heightened scrutiny
• Use RB for restrictions that dont rise to this
  level
• purpose or effect of placing substantial
  obstacle in the path of aborting a nonviable
  fetus
• Impermissible purpose to prevent abortion
• Impermissible means if abortion cannot be
  obtained
• Ultimate decision must remain womans but state
  can influence it all it likes

state laws are invariably calculated to hinder a
decision to have an abortion J. Scalia
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Planned Parenthood v. Casey (1992)

• Penn Abortion Control Act
• Spousal notification
• Informed Consent
• 24 waiting period
• Anti-abortion information
• Parental consent for minors (judicial bypass)

Which of these (if any) impose undue burdens on
women seeking abortions
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Planned Parenthood v. Casey (1992)

• Penn Abortion Control Act
• Spousal notification
• Law is unnecessary in well-functioning
  relationships
• Potentially dangerous in dysfunctional ones
• Exceptions in law dont really help
• Likely effect is to prevent a significant number
  of women from obtaining an abortion
• Not merely make abortions more difficult but to
  prevent
• But only 1 of women who get abortions affected
• Number unimportant look only at effect on those
  impacted
• Fathers and mothers interest not comparable

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Planned Parenthood v. Casey (1992)
these all surved the undue burden analysis. Why

• Penn Abortion Control Act
• Informed Consent
• 24 waiting period
• Anti-abortion information
• Parental consent for minors (judicial bypass)

• How is undue burden test applied
• What standard of review to use
• Whose ad hoc judgments count
• What happens once Undue Burden found
• Case is functionally over Strict scrutiny is
  only nominally applied

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Stenberg v. Carhart (2000)

• NE law banning partial birth abortion

contrast Dilation Evacuation (DE) with
Dilation Extraction (DX)
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Stenberg v. Carhart (2000)

• NE law banning partial birth abortion
• Applies to pre-viability abortions
• where the states interest is far weaker
• What interest is the state pursuing
• Note only a method of abortion is proscribed
• prevents cruelty to partially born children
• Is this related to the states pre-viability
  interest in protecting maternal health or
  informing decision
• Undue burden
• Other abortion procedures available
• Not usually when D X is performed

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Stenberg v. Carhart (2000)

• OConnor (concur)
• Lacks an exception for health of woman
• Even post-viability prohibitions need that
• Could NB probit only DX (w/ medical necessity
  exception)
• Unlikely to pose a substantial obstacle

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