Constitutional Law II Fall 2006Con Law II1 Abortion

Fall 2006Con Law II2 Framing the Analysis 1. Does a woman have a fundamental right to terminate her pregnancy? 2. When does state regulation of abortion amount to a deprivation of that right? 3. Is the state interest compelling? (ENDS) 4. Is the challenged regulation (MEANS) narrowly tailored to promote the ENDS?

Fall 2006Con Law II3 Framing the Analysis 1. Does a woman have a fundamental right to terminate her pregnancy? 2. When does state regulation of abortion amount to a deprivation of that right? 3. Is the state interest compelling? (ENDS) 4. Is the challenged regulation (MEANS) narrowly tailored to promote the ENDS? Basic issue here is one of constitutional interpretation

Fall 2006Con Law II4 Framing the Analysis 1. Does a woman have a fundamental right to terminate her pregnancy? 2. When does state regulation of abortion amount to a deprivation of that right? 3. Is the state interest compelling? (ENDS) 4. 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)

Fall 2006Con Law II5 Framing the Analysis 1. Does a woman have a fundamental right to terminate her pregnancy? 2. When does state regulation of abortion amount to a deprivation of that right? 3. Is the state interest compelling? (ENDS) 4. 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)

Fall 2006Con Law II6 Framing the Analysis 1. Does a woman have a fundamental right to terminate her pregnancy? 2. When does state regulation of abortion amount to a deprivation of that right? 3. Is the state interest compelling? (ENDS) 4. 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

Fall 2006Con Law II7 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 19 th 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

Fall 2006Con Law II8 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 gov’t snooping How is this different than Lochner era?

Fall 2006Con Law II9 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 const’l right is absolute, even when text says so (“congress shall make no law...”)

Fall 2006Con Law II10 Roe v. Wade (1973) State Interests Victorian morality Medical safety Protecting prenatal life  Is fetus a “person” within meaning of 14 th amend? Textualist Originalist Non-interpretivist Natural law (God’s law)  When does fetus become a “person” conceptionbirthquickeningviability

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Fall 2006Con Law II13 Roe v. Wade (1973) When does life begin? Medical / Scientific Philosophical Religious  Catholic, Protestant, Jewish, Budhist, Confucian Legal Why isn’t Texas free to adopt any 1 of the many conflicting opinions on this issue? 1st Amd – “establishment of religion” State has burden of proof – can’t just guess

Fall 2006Con Law II14 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

Fall 2006Con Law II15 Roe v. Wade (1973) Compelling Interest Maternal health Potential life Necessary Means Health regulation Prohibition Viability ~28 weeks

Fall 2006Con Law II16 Roe v. Wade (1973) no (special) regulations permitted reasonable reg of medical procedures may prohibit except where medically neces. Viability ~28 weeks

Fall 2006Con Law II17 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 women’s rights?

Fall 2006Con Law II18 Planned Parenthood v. Casey (1992) Pres. Bush names Souter & Thomas to replace Brennan & Marshall Kennedy switches => 5 votes to retain Roe O’Connor/Kennedy/Souter Stevens Blackmun Right to abortion found in 14 th 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?

Fall 2006Con Law II19 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 <= Rehnquist Rule of law requires continuity  Creates expectancies, legal landscape of society How has society changed in response to Roe? Economic / women’s stauts  Even if precedent wrongly decided or unsound? Changed conditions?

Fall 2006Con Law II20 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 women’s 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”

Fall 2006Con Law II21 Planned Parenthood v. Casey (1992) Scalia (dissent) Analogy to Dred Scott (slavery)?

Fall 2006Con Law II22 Planned Parenthood v. Casey (1992) Redrawing the line between privacy/state Replace trimester framework with “viability”  Why doesn’t 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 woman’s 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”

Fall 2006Con Law II23 Planned Parenthood v. Casey (1992) Undue Burden test “Only where state regulation imposes an undue burden on a woman’s ability to [decide]” will be subject to heightened scrutiny  Use RB for restrictions that don’t 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 woman’s, but state can influence it all it likes state laws are invariably “calculated to hinder a decision to have an abortion” J. Scalia

Fall 2006Con Law II24 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”

Fall 2006Con Law II25 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 don’t 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  Father’s and mother’s interest not comparable

Fall 2006Con Law II26 Planned Parenthood v. Casey (1992) 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 these all surved the undue burden analysis. Why?

Fall 2006Con Law II27 Stenberg v. Carhart (2000) NE law banning “partial birth abortion” contrast Dilation & Evacuation (D&E) with Dilation & Extraction (D&X)

Fall 2006Con Law II28 Stenberg v. Carhart (2000) NE law banning “partial birth abortion” Applies to pre-viability abortions  where the state’s 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 state’s pre-viability interest in protecting maternal health, or informing decision Undue burden? Other abortion procedures available?  Not usually when D & X is performed

Fall 2006Con Law II29 Stenberg v. Carhart (2000) O’Connor (concur) Lacks an exception for health of woman Even post-viability prohibitions need that Could NB prohibit only D&X (w/ medical necessity exception)  Unlikely to pose a “substantial obstacle”

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