Sunday, March 25, 2012

Abortion Legal Cases

 The Abortion Battle

1. Roe v. Wade (1973)(p. 495) Privacy
Established right to bodily integrity, freedom from intrusion into bodily integrity, right to be free from invasion of “property.” Choice is a fundamental right, derives from long line of childbearing cases. Applies strict scrutiny, fetus not a ‘person’ under 14th, divides pregnancy into 3 trimesters, as pregnancy progresses, state interest increases.
1stno state involvement.
2ndstate interest increases, possible use of police powers.
3rdstate can regulate (ban abortion, compelling interest in health of fetus, only exception is mom’s health)
Court said that abortion is included in the right to privacy, yet this right should be considered against important state interests. Said woman does not have an absolute right to an abortion.

2. Webster v. Reproductive Health Services (1989)(p. 505)
Court upheld Missouri law requiring doctors to determine viability before performing an abortion after the 20th week of pregnancy.

3. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)(p. 506)
Facts: PA required woman seeking abortion to wait 24 hours in order to consider info regarding the risks and nature of the procedure.
Issue: Whether Roe should be upheld.
Holding: (O’Connor) Ct upheld informed consent, 24- hour waiting period. Reaffirmed holding of Roe, but allowed for greater regulation. The court said that this holding was as follows:
  1. Upheld women’s right to choose b/f viability and to obtain w/o state’s undue interference from the State.
  2. Said State had power to restrict abortions after viability, in the event that states have exceptions for pregnancies that put the woman’s life in danger.
  3. State has legitimate interests from outset of the pregnancy in protecting the health of the woman and the life of the fetus.
Protection of abortion disseminates from 14th Amendment Due Process Clause, Individual liberty concept
Rejected Roe’s trimester framework.
  • Only part of majority upheld Roe. Blackmun and Stevens urged complete affirmation of Roe.
Dissent: Rehnquist argued that right to abortion fails Palko’s “ordered liberty” test.
Notes: Court backing away from Roe – no language used like, “compelling”

What is left of Roe after Casey? Regulations were added.
  1. If you are a minor you had to get consent of one parent or waiver from judge.
  2. A woman has to tell her husband – raised in oral argument – forced speech – unconstitutional – only applies to married women – O’Connor asked what state interest was – to further integrity of marriage
  3. Doctor has to give one-day waiting period, inform woman of procedure, etc. – forced speech .
  4. In Roe the level of scrutiny into this right changes in Casey – in Roe it is strict scrutiny into the state’s interest, in Casey it is an important state interest with a balancing of interests

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