The Casey framework:

1
The Casey framework

• Before viability, restrictions on abortions only
  violate the right if they impose an undue burden
• But even restrictions that do not impose an undue
  burden still must have an adequate exception for
  medical emergencies
• After viability, the state can ban abortion to
  protect fetal life
• As long as there is an exception for the
  life/health of the woman

2
Caseys Undue Burden Test

• When is a restriction on abortion an undue
  burden?
• When does it have the purpose or effect of
  imposing a substantial obstacle? When is it
  designed to strike at the heart of the right
  itself?
• Incidental effect of making abortion more
  expensive is OK
• OK for the state to try to persuade women to
  choose childbirth
• Why do the 24 hour waiting period, informed
  consent, and parental notification requirements
  pass the undue burden test?
• Why does the spousal notification requirement
  fail?

3
The PA law in Casey

• Exception for medical emergencies the PA law
  permitted exceptions for immediate abortions
  where necessary, in the doctors good faith
  clinical judgment, to avert death or serious risk
  of substantial and irreversible impairment of a
  major bodily function
• The exception is key to the Courts analysis
  upholding major provisions of the law accepts
  the lower courts interpretation that the statute
  assures no significant threat to life or health
• Remaining questions what kinds of threats to
  health count, and when are they significant?

4
The PA law, cont. Informed Consent and Waiting
Period

• At least 24 hours prior to the abortion, the
  attending physician must provide, in-person,
  state-mandated information on abortion, including
  information on gestational age, fetal development
  and abortion alternatives
• Upheld, as long as the information is truthful
  and not misleading the state may try to persuade
  women not to choose abortion
• The 24 hour waiting period is a closer call, but
  no evidence it imposes a substantial obstacle

5
The PA law, cont. Spousal Notification

• The Court invalidates the husband notification
  requirement for married women
• It would only be at issue in marriages where such
  communication would not otherwise occur in such
  marriages, the notification requirement imposes a
  substantial obstacle
• The PA law rests on a view of marriage consistent
  with legal traditions (common law coverture), but
  problematic today

6
The PA law, cont. Parental Consent

• The Court upholds the states requirement that a
  minor seeking an abortion obtain the consent of
  one parent or guardian
• The existence of an adequate judicial by-pass
  provision was instrumental in the Courts ruling

7
The Partial-Birth Abortion Controversy

• Stenberg v. Carhart (2000) the Court struck down
  Nebraskas law preventing partial birth
  abortion unless necessary to save a womans life
• The law made it a felony for a doctor to
  intentionally deliver a living unborn child or a
  substantial portion thereof into the vagina for
  the purpose of a procedure which the doctor knows
  will kill the unborn child

8
The Stenberg decision

• The Court held the law unconstitutional for 2
  reasons
• (1) the law lacked an adequate exception for
  preservation of the womans health some expert
  testimony showed alternatives would increase
  womens health risks
• (2) the law was vague about whether it applied to
  DE (most common second trimester procedure) as
  well as DX abortions
• The current federal Partial Birth Abortion
  statute is now being challenged in litigation in
  federal court
• lower courts have invalidated the law for lack of
  an adequate exception for the womans health the
  Supreme Court recently granted certiorari. For
  general background, see http//www.npr.org/templat
  es/story/story.php?storyId5168163

9
The Scope of Fundamental Rights Bowers v.
Hardwick

• The issue whether the privacy right found in the
  Courts prior cases, including Griswold,
  Eisenstadt and Roe, is infringed by Georgias
  sodomy law.
• Why does the Court find that the right is NOT
  implicated here?
• The Court asks whether the Constitution confers
  a fundamental right upon homosexuals to engage
  in sodomy

10
Reasoning from the Privacy Precedents

• How does the Court read the privacy right
  established in prior precedents?
• Is there any other way to read the right?