Roe v. Wade
- What is the right at stake?
- What is the source of the right?
- What is the standard of review?
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.
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"
Abortion post-Roe, pre-Casey
- structuring the informed consent dialogue
(no)
- waiting periods as in Casey (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 health of the woman (yes)
Casey
How do we know when we have a 14th Amendment
fundamental right?
There are no simple rules here; courts must
exercise "reasoned judgment."
Theories in Griswold
- The penumbras of the Bill of Rights (Douglas)
(pp.811-812)
- 14th A. "liberty" with analogy
to the 9th A. (Goldberg) (so rooted in tradition and
the collective conscience as to be ranked as fundamental, p.813)
- 14th A. Due Process (Harlan) (implicit in
the concept of ordered liberty, p.814)
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 first set of bars reflects the state's freedom to regulate
when a fundamental right is not at stake. The second set
of bars reflects the state's freedom under Roe to
regulate when a fundamental right is at stake. It also reflects
the standard enunciated in Flores (p.893 of the
casebook) for fundamental rights. The third set of bars reflects
the state's freedom to regulate abortion (and ? other fundamental
rights) under Casey.
The left axis indicates the extent to which the state can
infringe the individual right at stake.
Legitimate State Interests in Casey
- informing the woman’s choice
- persuading the woman to choose childbirth
over abortion (i.e., fetal well-being)
- fostering the health of the woman.
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)