ConLaw+-+Mazzone+Notes - Constitutional Law Prof Mazzone...

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Constitutional Law Prof. Mazzone Take home exam: 8 hour set on date registrar sets Treaties: Chemerinsky Web Course page on Lexis: Password = Hamilton 1/12/04 PRIVACY Roe v. Wade [p. 1172] 410 US 113 (1973) Tag line: Abortion > Right’s of Mother v. State Blackmun focused on the Right to Privacy. “This right of privacy, whether it be founded in the 14 th Amendment’s conception of personal liberty and restrictions upon state action, as we feel it is, or, ... in the 9 th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” HISTORY: Roe involved a challenge to a Texas law that prohibited all abortions except those necessary to save the life of the mother. HOLDING: The Constitution protects a right for a woman to choose to terminate her pregnancy prior to viability - the time at which the fetus can survive on its own outside the womb. Specifically, the Court ruled that the government may not prohibit abortions prior to viability and that the government regulations of abortions had to meet strict scrutiny. Planned Parenthood v. Casey (1992) re-affirmed Roe v. Wade. Court also added that the government may regulate abortions before viability so long as it does not place an “undue burden” on access to abortions. The right of abortion is not absolute and must be balanced w/ against other considerations, such as state’s interest in protecting “prenatal life.” Supreme Court: No indication that the term “person” in the Constitution was ever meant to include fetuses. Supreme Court: State had a “compelling interest” in protecting maternal health after 1 st trimester b/c is was then that abortions became more dangerous than childbirth. Compelling point is at viability. Court therefore divides pregnancy into 3 trimesters: 1 st trimester: Gov. could not prohibit abortions and could regulate abortions only as it 1
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regulated other medical procedures. 2 nd trimester: Gov. could not outlaw abortions, but “may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.” Stage subsequent to viability: Gov. may prohibit abortions except if necessary to preserve the life or health of the mother. REASONING: Prohibiting abortion infringes on a woman’s right to privacy b/c of the possible consequences of bearing the child: Additional children may cause stress, psychological harm. Mental and physical health of the mother may be at risk. Stress of an unwanted child. Class notes: The Constitution: When you think about constitutional questions, start analyzing the problem from the actual text. Need to get into habit of reading ENTIRE document not just individual clauses. Think about how specific provisions fit into context of document as a whole.
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