Roe v. Wade

1. Roe v. Wade • Issue • Are the Texas criminal abortion statutes unconstitutional on their face? • Rule • Yes, a woman has a liberty right to privacy in this decision under the 14th Amendment • The government may interfere with this right to protect the health of the mother or the life of a child • Viability determined to be the compelling point at which the state may intervene for a child [viability established at 24 to 28 weeks] • Level of Scrutiny • Strict

2. Roe v. Wade Right to privacy includes rights that are: • “fundamental” (i.e., so rooted in the tradition and conscience of our people as to be ranked fundamental) • “implicit in the concept of ordered liberty” • examples include: marriage, procreation, contraception, family relationships, child rearing and education. • pages 844-845

3. Roe v. Wade State may limit the right to abortion only if: • it invokes a “compelling state interest” • the law is “narrowly drawn to express only the legitimate interests at stake” • page 845

4. Roe v. Wade • After the first trimester, the state may regulate abortion to preserve and protect maternal health • After viability, the state may prohibit abortion to promote its interest in the potential for human life • Abortion must always be available if necessary for the “preservation of the life or health of the mother” • pages 846-847

5. Abortion post-Roe, pre-Casey • structuring informed consent dialogue (no) • waiting periods (no) • requirements that hospitals be used for second trimester abortions (no) • requirements for spousal consent (no) • requirements for parental consent for minors (yes, if judicial bypass) • refusals to fund abortions even when necessary to protect woman’s health (yes)

6. Planned Parenthood v. Casey • Review of Roe v. Wade • Issue- Does the 14thA. sdp clause protect abortion? (From . . . ) • Informed consent • Information +24 hours • Consent of one parent • Judicial by-pass • Notification to husband • Rule- Yes, sort of (notice to husband struck) • Analysis

7. Casey • Protection for personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. • These decisions involve “the most intimate and personal choices a person may make in a lifetime.” • “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” • The abortion decision is “more than a philosophic exercise.”

8. Casey • State may regulate abortion throughout pregnancy unless its regulation causes undue interference and has the purpose or effect of placing a substantial obstacle in the path of a woman’s choice to seek abortion • State may adopt regulations to protect the health of the woman • State may take measures to inform the woman’s choice and to persuade the woman to choose childbirth • Required information must be truthful and not misleading • State may prohibit abortion after viability as long as it permits abortion when necessary to preserve the life or health of the mother

9. Standard of Review from Roe to Casey

10. Abortion post-Casey • structuring informed consent dialogue (yes) • waiting periods (yes) • requirements that hospitals be used for second trimester abortions (probably not) • requirements for spousal consent (no) • requirements for parental consent for minors (yes, if judicial bypass) • refusals to fund abortions even when necessary to protect woman’s health (yes)

11. The nature of the abortion right • By restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care (Blackmun, page 876)

12. Did Roe wrongly impose a national standard? • Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe . . . . • Profound disagreement existed among our citizens over the issue . . . but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. . . . (Scalia, page 881)

13. Legal-ethical confusion • At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. (‘‘If the Constitution guarantees abortion, how can it be bad?’’—not an accurate line of thought, but a natural one.) (Scalia, page 881)