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Unformatted text preview: Court Cases after Roe
Restrictions on Abortion:
Phase One: 1973-1988
Phase Restrictions on Abortion
Spousal Consent or notification Public Funding/Public Facilities Parent Consent or notification Waiting Periods Informed Consent/Biased Counseling ‘Late term’ Abortions Viability Testing Spousal Notification or Consent
Spousal Rule requiring notification or consent of
– Regardless of paternity of child
– Required written permission/notification Ruled: Unconstitutional
– Planned Parenthood v. Danforth (1976)
– Akron v. Akron Center for Repro Health (1983) Parental Notification or Consent
– Planned Parenthood of Central Missouri v
» Required unmarried woman under age of 18 to
obtain written consent of both parents – Ruled: Unconstitutional (5-4)
» “the state does not have constitutional authority to
give a third party an absolute, and possibly
arbitrary, veto over the decision…”
arbitrary, Parental Notification or Consent
Parental 1979 Belloti v. Baird
Massachusetts law required notification of one or
both parents for unmarried women under age of 18
– Contained a ‘judicial bypass’ provision
» But must contact parents first Ruled: Unconstitutional
– State has important role in furthering ‘guiding role of
parents’ but must respect privacy of minors Parental Notification or Consent
Parental Judicial Bypass
– Must allow minor to demonstrate maturity and
capacity to make informed decision
– Must insure teenager’s anonymity
– Must provide ‘expedited appeals’ Public Funding Prohibits use of all federal funding for abortion or
Exception for life of the mother, but not
rape/incest Ruled: Constitutional
Harris v. McRae (1980)
“although gov’t may not place obstacles in the path of a
woman’s exercise of her freedom of choice, it need not
move those not of its own creation. Indigency falls into
the latter category.” Public Funding
Public Prohibited funding for abortion for:
– Federal employees
Military personnel and their dependents States with public funding:
– 16 states provide state funding Cases after Roe
Cases Phase 2: 1989-present Public Facilities
Public Prohibit use of health facilities receiving any
federal dollars from performing abortions:
federal – Ruled: Constitutional
– (1989) Webster v. Repro Health Services
– If the state could ‘prefer’ childbirth over abortion by
withholding funds, it could also withhold facilities….
– “it does not create a barrier, it only leaves a woman in
the same position as if the hospital had never been
built.” Viability Testing
Viability Requires patient near end of 2nd trimester to
undergo testing to see if fetus has reached
point of viability before abortion
– Requires removing fluid from amniotic sack
through use of long syringe
– Ruled: Constitutional
– (1989) Webster v. Repro Health Services Waiting Periods/Informed
Consent Requires patient to wait 24 hours after first
appearance at abortion clinic for procedure
appearance Requires patient receive information about fetal
development, adoption options
Ruled: Constitutional – (1992) Planned Parenthood v Casey
» Upheld 24 hour waiting, informed consent, parental consent.
» Such restrictions do NOT create an UNDUE BURDEN for a
woman seeking abortion.
woman ‘Late Term’ Abortion Ban Nebraska law bans late-term abortion procedure:
– ‘An abortion procedure in which the person performing
the abortion partially delivers vaginally a living unborn
child before killing the unborn child and completing
– Typically performed between 16-24 weeks
– Estimates: 640-5,000/year
– Typically performed on wanted pregnancies with major
fetal malformations or risks to pregnant woman’s
– Also known as D&X (dilation and extraction) abortion “Late Term” Abortion Ban
27 states had passed bans Ruled: Unconstitutional
Ruled: Unconstitutional – Stenberg v. Carhart (2000)
» Law had no health exception
» Procedure necessary to protect health of woman
» Language too vague to limit restriction to one type
of abortion procedure
of – 2003: Congress passes Partial Birth Abortion
ban despite Supreme Court ruling
– Now under review by the courts.
Now Restrictions on Abortion
Spousal Notification or Consent Parental Notification or Consent Informed Consent/Biased counseling Public Funding (# of states providing) “Partial birth” abortion ban 0
27 What Legal Standards have
“Undue Burden Standard” Standards for Judicial Review
Strict scrutiny: Most stringent standard the
court uses to assess constitutionality of any
limits on most fundamental rights of
citizens. Must have a ‘compelling’ state interest – Restriction must be for the purpose of
protection of life, health or another most basic
human right (voting, speech, prevent injury to
others, Lesser standard of review:
Rational Basis Test
Standard used to judge constitutionality of
limits/restrictions on less essential rights
limits/restrictions Restriction must be ‘rationally related’ to
the stated interest served by the restriction
the Must serve the true purpose and not be a
pretext for another purpose….
pretext Example: 24 hour waiting…to protect
health and well being or discourage
abortion? Undue Burden standard
Undue New, lower standard set by the court
– (in Planned Parenthood v Casey decision, 1992)
Casey A restriction on abortion is an undue burden
– “it has the purpose or effect of placing a
substantial obstacle in the path of a woman
seeking an abortion of a non-viable fetus”
seeking What is a substantial obstacle? Restrictions on public funding?
– Not a substantial obstacle Restrictions on public facilities?
– Not a substantial obstacle Prohibitions on federal insurance?
– Not a substantial obstacle
Not Parental consent?
– Not a substantial obstacle (with judicial
bypass) What is a substantial obstacle?
What 24 hour waiting period?
– Not a substantial obstacle Required counseling?
– Not a substantial obstacle Viability testing?
– Not a substantial obstacle What is a substantial obstacle?
What Spousal notification
– A substantial obstacle ‘Partial Birth’ abortion bans (without
exception for maternal health)
– A substantial obstacle Outright prohibitions on abortion
procedures (without exception for maternal
health or life)
– A substantial obstacle Supreme Court 2006
– Five justices ready to overturn Roe?
– Scalia, Thomas, Stevens
– Ginsburg, Kennedy, Souter, Breyer
– Unknown position:
– Roberts (Chief Justice)
– Alito State Laws Prohibiting Abortion
State South Dakota state law:
– 2006: Ban on all abortions, with exception only
for the life of the mother….
– Currently being challenged by State referendum
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- Spring '11