GPO-CONAN-2017-10-15.pdf

624 the court did however leave open the possibility

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would ever impose significant health risks on women.” 624 The Court did, however, leave open the possibility that as-applied challenges could still be made in individual cases. 625 As in Stenberg , the prohibition considered in Gonzales ex- tended to the performance of an abortion before the fetus was vi- able, thus directly raising the question of whether the statute im- posed an “undue burden” on the right to obtain an abortion. Unlike joined by Justices Steven, Souter and Breyer. Justice Thomas also filed a concur- ring opinion, joined by Justice Scalia, calling for overruling Casey and Roe . 620 18 U.S.C. § 1531(b)(1)(A). The penalty imposed on a physician for a violation of the statute was fines and/or imprisonment for not more than 2 years. In addition, the physician could be subject to a civil suit by the father (or maternal grandpar- ents, where the mother is a minor) for money damages for all injuries, psychological and physical, occasioned by the violation of this section, and statutory damages equal to three times the cost of the partial-birth abortion. 621 550 U.S. at 150. 622 550 U.S. at 148–150. 623 As in Stenberg , the statute provided an exception for threats to the life of a woman. 624 550 U.S. at 162. Arguably, this holding overruled Stenberg insofar as Stenberg had allowed a facial challenge to the failure of Nebraska to provide a health excep- tion to its prohibition on intact dilation and excavation abortions. 530 U.S. at 929– 38. 625 550 U.S. at 168. 1948 AMENDMENT 14—RIGHTS GUARANTEED
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the statute in Stenberg , however, the ban in Gonzales was limited to the far less common “intact dilation and excavation” procedure, and consequently did not impose the same burden as the Nebraska statute. The Court also found that there was a “rational basis” for the limitation, including governmental interests in the expression of “respect for the dignity of human life,” “protecting the integrity and ethics of the medical profession,” and the creation of a “dia- logue that better informs the political and legal systems, the medi- cal profession, expectant mothers, and society as a whole of the con- sequences that follow from a decision to elect a late-term abortion.” 626 The Court revisited the question of whether particular restric- tions place a “substantial obstacle” in the path of women seeking a pre-viability abortion and constitute an “undue burden” on abor- tion access in its 2016 decision in Whole Woman’s Health v. Hel- lerstedt . 627 At issue in Whole Woman’s Health was a Texas law that required (1) physicians performing or inducing abortions to have ac- tive admitting privileges at a hospital located not more than thirty miles from the facility; and (2) the facility itself to meet the mini- mum standards for ambulatory surgical centers under Texas law. 628 Texas asserted that these requirements served various purposes re- lated to women’s health and the safety of abortion procedures, in- cluding ensuring that women have easy access to a hospital should complications arise during an abortion procedure and that abortion facilities meet heightened health and safety standards.
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