Webster+and+Casey - Court Cases after Roe Court...

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Unformatted text preview: Court Cases after Roe Court Restrictions on Abortion: Restrictions Phase One: 1973-1988 Phase Restrictions on Abortion Restrictions 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 Rule legal husband legal – 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 Parental 1976 1976 – Planned Parenthood of Central Missouri v Planned Danforth Danforth » Required unmarried woman under age of 18 to Required obtain written consent of both parents – Ruled: Unconstitutional (5-4) » “the state does not have constitutional authority to the give a third party an absolute, and possibly arbitrary, veto over the decision…” arbitrary, Parental Notification or Consent Parental 1979 Belloti v. Baird 1979 Massachusetts law required notification of one or Massachusetts both parents for unmarried women under age of 18 both – Contained a ‘judicial bypass’ provision » But must contact parents first Ruled: Unconstitutional – State has important role in furthering ‘guiding role of State 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 capacity – Must insure teenager’s anonymity – Must provide ‘expedited appeals’ Public Funding Prohibits use of all federal funding for abortion or Prohibits abortion counseling. abortion Exception for life of the mother, but not Exception rape/incest rape/incest Ruled: Constitutional Ruled: Constitutional Harris v. McRae (1980) “although gov’t may not place obstacles in the path of a although 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 Federal prisoners 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 Prohibit federal dollars from performing abortions: federal – Ruled: Constitutional – (1989) Webster v. Repro Health Services – If the state could ‘prefer’ childbirth over abortion by If withholding funds, it could also withhold facilities…. withholding – “it does not create a barrier, it only leaves a woman in it the same position as if the hospital had never been built.” 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 point – Requires removing fluid from amniotic sack Requires through use of long syringe through – Ruled: Constitutional Ruled: – (1989) Webster v. Repro Health Services Waiting Periods/Informed Consent laws Consent Requires patient to wait 24 hours after first Requires appearance at abortion clinic for procedure appearance Requires patient receive information about fetal Requires development, adoption options development, Ruled: Constitutional – (1992) Planned Parenthood v Casey » Upheld 24 hour waiting, informed consent, parental consent. Upheld » Such restrictions do NOT create an UNDUE BURDEN for a Such woman seeking abortion. woman ‘Late Term’ Abortion Ban Nebraska law bans late-term abortion procedure: – ‘An abortion procedure in which the person performing An the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” the – Typically performed between 16-24 weeks – Estimates: 640-5,000/year – Typically performed on wanted pregnancies with major Typically fetal malformations or risks to pregnant woman’s health health – 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 Language of abortion procedure of – 2003: Congress passes Partial Birth Abortion 2003: ban despite Supreme Court ruling ban – Now under review by the courts. Now Restrictions on Abortion Restrictions Spousal Notification or Consent Parental Notification or Consent Informed Consent/Biased counseling Public Funding (# of states providing) “Partial birth” abortion ban 0 44 30 16 27 What Legal Standards have justified restrictions? justified “Undue Burden Standard” Standards for Judicial Review Standards Strict scrutiny: Most stringent standard the Most 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 Restriction protection of life, health or another most basic human right (voting, speech, prevent injury to others, etc.) others, Lesser standard of review: Rational Basis Test Rational Standard used to judge constitutionality of Standard limits/restrictions on less essential rights limits/restrictions Restriction must be ‘rationally related’ to Restriction the stated interest served by the restriction the Must serve the true purpose and not be a Must pretext for another purpose…. pretext Example: 24 hour waiting…to protect Example: health and well being or discourage abortion? abortion? Undue Burden standard Undue New, lower standard set by the court New, – (in Planned Parenthood v Casey decision, 1992) (in Planned Casey A restriction on abortion is an undue burden restriction (unconstitutional) if (unconstitutional) – “it has the purpose or effect of placing a it 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? Restrictions – Not a substantial obstacle Restrictions on public facilities? Restrictions – Not a substantial obstacle Prohibitions on federal insurance? – Not a substantial obstacle Not Parental consent? Parental – Not a substantial obstacle (with judicial bypass) bypass) What is a substantial obstacle? What 24 hour waiting period? 24 – Not a substantial obstacle Required counseling? Required – Not a substantial obstacle Viability testing? Viability – Not a substantial obstacle What is a substantial obstacle? What Spousal notification – A substantial obstacle ‘Partial Birth’ abortion bans (without Partial exception for maternal health) exception – A substantial obstacle Outright prohibitions on abortion Outright procedures (without exception for maternal health or life) health – A substantial obstacle Supreme Court 2006 Supreme – Five justices ready to overturn Roe? Five Roe? – Pro-life: – Scalia, Thomas, Stevens – Pro-choice: – 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 2006: for the life of the mother…. for – Currently being challenged by State referendum Currently in November….. in ...
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