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The Casey framework:


But even restrictions that do not impose an undue burden still must have an ... Constitution confers 'a fundamental right upon homosexuals to engage in sodomy' ... – PowerPoint PPT presentation

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Title: The Casey framework:

The Casey framework
  • Before viability, restrictions on abortions only
    violate the right if they impose an undue burden
  • But even restrictions that do not impose an undue
    burden still must have an adequate exception for
    medical emergencies
  • After viability, the state can ban abortion to
    protect fetal life
  • As long as there is an exception for the
    life/health of the woman

Caseys Undue Burden Test
  • When is a restriction on abortion an undue
  • When does it have the purpose or effect of
    imposing a substantial obstacle? When is it
    designed to strike at the heart of the right
  • Incidental effect of making abortion more
    expensive is OK
  • OK for the state to try to persuade women to
    choose childbirth
  • Why do the 24 hour waiting period, informed
    consent, and parental notification requirements
    pass the undue burden test?
  • Why does the spousal notification requirement

The PA law in Casey
  • Exception for medical emergencies the PA law
    permitted exceptions for immediate abortions
    where necessary, in the doctors good faith
    clinical judgment, to avert death or serious risk
    of substantial and irreversible impairment of a
    major bodily function
  • The exception is key to the Courts analysis
    upholding major provisions of the law accepts
    the lower courts interpretation that the statute
    assures no significant threat to life or health
  • Remaining questions what kinds of threats to
    health count, and when are they significant?

The PA law, cont. Informed Consent and Waiting
  • At least 24 hours prior to the abortion, the
    attending physician must provide, in-person,
    state-mandated information on abortion, including
    information on gestational age, fetal development
    and abortion alternatives
  • Upheld, as long as the information is truthful
    and not misleading the state may try to persuade
    women not to choose abortion
  • The 24 hour waiting period is a closer call, but
    no evidence it imposes a substantial obstacle

The PA law, cont. Spousal Notification
  • The Court invalidates the husband notification
    requirement for married women
  • It would only be at issue in marriages where such
    communication would not otherwise occur in such
    marriages, the notification requirement imposes a
    substantial obstacle
  • The PA law rests on a view of marriage consistent
    with legal traditions (common law coverture), but
    problematic today

The PA law, cont. Parental Consent
  • The Court upholds the states requirement that a
    minor seeking an abortion obtain the consent of
    one parent or guardian
  • The existence of an adequate judicial by-pass
    provision was instrumental in the Courts ruling

The Partial-Birth Abortion Controversy
  • Stenberg v. Carhart (2000) the Court struck down
    Nebraskas law preventing partial birth
    abortion unless necessary to save a womans life
  • The law made it a felony for a doctor to
    intentionally deliver a living unborn child or a
    substantial portion thereof into the vagina for
    the purpose of a procedure which the doctor knows
    will kill the unborn child

The Stenberg decision
  • The Court held the law unconstitutional for 2
  • (1) the law lacked an adequate exception for
    preservation of the womans health some expert
    testimony showed alternatives would increase
    womens health risks
  • (2) the law was vague about whether it applied to
    DE (most common second trimester procedure) as
    well as DX abortions
  • The current federal Partial Birth Abortion
    statute is now being challenged in litigation in
    federal court
  • lower courts have invalidated the law for lack of
    an adequate exception for the womans health the
    Supreme Court recently granted certiorari. For
    general background, see http//

The Scope of Fundamental Rights Bowers v.
  • The issue whether the privacy right found in the
    Courts prior cases, including Griswold,
    Eisenstadt and Roe, is infringed by Georgias
    sodomy law.
  • Why does the Court find that the right is NOT
    implicated here?
  • The Court asks whether the Constitution confers
    a fundamental right upon homosexuals to engage
    in sodomy

Reasoning from the Privacy Precedents
  • How does the Court read the privacy right
    established in prior precedents?
  • Is there any other way to read the right?