Week 5: Abortion Law (post-Roe v. Wade) Flashcards
(27 cards)
Planned Parenthood v. Casey (1992) context
In 1988 and 1989, Pennsylvania changed its abortion laws and added several restrictions for certain people seeking abortions.
The changes required informed consent and a 24-hour waiting period before someone could receive an abortion. In most instances, a minor seeking an abortion had to get consent from at least one parent. And if a married woman sought an abortion, she had to say that she had notified her husband.
Several doctors and abortion providers sued and the case went to a district court
What were the major changes that resulted from Planned Parenthood v. Casey?
- upended trimester framework of Roe v. Wade
- viability standard
- established an undue burden test for pre-viability abortions; deemed unconstitutional to regulate pre-viability abortions if placed an undue burden on the mother
Undue burden test
restrictions on abortion permitted so long as long as you’re not putting a substantial obstacle in the path of a woman’s right to choose
What were the key parameters the Planned Parenthood v. Casey case examined and what did they rule?
- *Minor must obtain consent from one guardian (ruled not an undue burden so long as there’s a judicial bypass provision)
- 24 hour waiting period for women seeking abortions (ruled not an undue burden)
- Wife required to inform husband of abortion plans (ruled an undue burden because of risk of domestic violence)
Judicial Bypass Provision
allows a minor to seek a court order granting them permission to have an abortion without the consent of their parents or guardians
Reproductive Health Servs vs Marshall context
In 2014, Alabama’s judicial bypass statute was changed. To settle whether a minor is mature enough to decide, the amendment invited the district attorney to call witnesses and to directly question the girl. It also allowed the court to appoint a guardian to legally represent the girl’s unborn fetus
Opposing attorney calling witness (e.g. teacher, neighbor, boyfriend) representing the unborn fetus
What is the question being evaluated in the Reproductive Health Services v. Marshall?
Is this an undue burden?
What did the court rule in the Reproductive Health Services v. Marshall case?
11th circuit ruled that although abortion can’t be made illegal, Alabama’s parental consent and judicial bypass provision would make it feel as if it was, thus creating an undue burden
What is Alabama’s current abortion policy, post-Dobbs?
Alabama began enforcing a total abortion ban, except if deemed necessary to prevent a serious health risk to the mother
In Alabama, a serious health risk is one that requires termination of the women’s pregnancy to avert her death or serious risk of substantial physical impairment of a major bodily function (but what is a “majorly bodily function” and what is the threshold for certainty of death?)
Explain mandatory ultrasounds
In many states, a patient seeking an abortion must receive an ultrasound and consult with a medical professional before hand
What is the controversy around mandatory ultrasounds?
If you want a first trimester abortion, a topical ultrasound does not provide a strong image, so you may need a trans-vaginal ultrasound to get a good image (which many women view as invasive)
This is not a health based procedure, its an informed consent based procedure
Now, in many states women are required to have this in order to have “informed consent”
What are the laws of mandated ultrasounds?
You must tell the pregnant women during the procedure what the ultrasound is depicting but the women is not required to listen or view the image
Does data support the idea that being forced to undergo an ultrasound changes your mind?
No; If you have high decision certainty 98% proceeded with abortion if they didn’t view the ultrasound and 97.5% proceeded of those who had high uncertainty and did view the ultrasound
Strict scrutiny
-the highest standard of judicial review used by courts to assess the constitutionality of government actions
-often applies when a fundamental right is involved
-requires the government to demonstrate that a law is narrowly tailored to serve a compelling government interest
The undue burden standard uses intermediate scrutiny (heightened judicial review)
Rational basis
a law must only be rationally related to some legitimate government interest
Dobbs v. Jackson Women’s Health Organization (2022) context
The Mississippi law before the Supreme Court in 2022 sought to ban most all abortions after 15 weeks (Although the only abortion clinic in the state wouldn’t perform them after 16 weeks)
*Based on Casey, would the Mississippi law be an undue burden on a woman’s right to choose?
Yes because if you’re not allowing her from 15 weeks to pre-viability (23 weeks), that is a total ban (since they can already ban third trimester)
What does it mean for the court to be a counter majorian force and how might that apply to abortion rights?
Counter majorian force: judges have a duty to enforce minorty rights
In this case there are still more men in power, so is it the court’s power to grant women’s rights that would not be granted under the current process (which is largely dominated by men)
What was the most important outcome of Dobbs v. Jackson Women’s Health Organization?
-declared that if a right is not enumerated in the Constitution, it’s not a Constituional right
Roe could be a fundamental right because it was “implicit in the concept of ordered liberty”
However now it must also be “deeply rooted in the nation’s history and traditions”
Views of judges in Dobbs case
Justice Alito: if we allow this, where does it stop – Argued if you have a right to bodily autonomy, would there be no laws against elicit drug use, prostitution, etc
Justice Kavanaugh: believed that the Constitution does not take side on the issue of abortion, so it’s up to the states
Justice Thomas: Does not believe the due process clause of the 14th Amendment protects substantive rights, so all substantive due rights precendent, including abortion, should be re-evaluated
What might be an argument against the idea that the Constitution did not enumrate abortion?
9th Amendment of Constitution says that are some rights that are not enumerated
Suggests that as society evolved, so too should our conception of constitutional rights
After Dobbs, how are abortions now evaluated?
there must be a ‘strong presumption of validity’
as long as there is a rational basis for restricting abortions, states can prevent them
(e.g. preserving the integrity of the medical field, fetal pain)
Raidoo v. Moylan context
Guam law requires women seeking abortions to have an in-person meeting with a physician - or a qualified agent of he doctor - who must disclose certain information (e.g. medical risks, adoption availability) before she has an abortion
Guam has not resident doctors who perform abortion. So women seeking abortion must obtain a medication abortion prescribed via telemedicine
How would the Raidoo v. Moylan case be evaluated under Casey versus Dobbs?
Under Casey, this would fail the undue burden test because a women would not be able to reach a professional for a meeting
Under Dobbs, requiring women to have an in person meeting is permitted because there is a rational argument that a zoom meeting is differnt from in person
