e. Abortion Funding Restrictions: Upheld because a fundamental right is protected from unduly burdensome interference but does not prevent the State to make a value judgment and to implement that judgment by the allocation of public funds. (i) State can refuse to subsidize abortion (ii) Can be disallowed for doctors in federally funded clinics to even discuss abortion f. Warnings (i) Very graphic warnings about abortion can interfere with a woman’s right to an abortion 10. Planned parenthood v. Casey (1992): a. Involved a challenge to a set of abortion regulations in Pennsylvania that created a 24-hour waiting period for abortions, required physicians to inform women of the availability of information about the fetus, required parental consent for unmarried minors’ abortions, creating requirements for reporting and record keeping, and requiring spousal notification before abortions. b. Joint Plurality (O’Connor, Kennedy & Souter): Rejects the trimester distinctions used in ROE and departs from the use of strict scrutiny for evaluating government regulation of abortions. c. But reaffirmed the premise that abortion is a fundamental right protected by the 14th amendmen t (emphasizes stare decisis and importance of precedent) d. the S.Ct. states that the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty. (i) State can’t prohibit abortion before viability, but can impose regulations so long as they don’t cause “undue burden” on access to abortion. (ii) A State regulation creates an undue burden when it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus (iii)Undue Burden test still divides the pregnancy between pre-viability and post-viability (A) Undue Burden test contemplates that a state may regulate abortion prior to viability as long as it is not a substantial obstacle (iv) Under this standard, the State is permitted to enact persuasive measures that favor childbirth over abortion, even if those measures do not further a health interest. e. Evaluating under the undue burden test, the S.Ct. found that the 24-hour waiting period was not a substantial obstacle but a particular burden. By contrast, the S.Ct. found that spousal notification imposed a substantial obstacle because it does not merely make abortions a little more difficult or expensive to obtain, but instead deters a significant number of women who fear for their safety and the safety of their children from procuring an abortion. f. Outcome: Gov’t can regulate abortion before viability as long as its not an undue burden (i) Post viability gov’t can regulate or even ban abortion as long as it makes exceptions for maternal health 39
F. Marriage, Family and Intimate Relationships: 1. Since Meyer , the Court has expressly held that certain aspects of family autonomy are fundamental rights and that government interference will be allowed only if strict scrutiny is met.
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