CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #26
More on abortion and the due process
clause
Key decisions after Roe, in addition
to those discussed in Casey:
- viability
is a medical concept, not tied to calendar (Danforth,
1976)
- requirement
of specified viability tests after 20th week, subject to
physician's professional judgment about usefulness and safety, valid (Webster
(1989))
- informed
consent requirement that physician provide specified information, found to
be intended to discourage exercise of right, invalid (Akron, 1983)
- absolute
third-party consent requirements (parents, spouse) invalid (Danforth, Bellotti
(1979), Akron); parental consent valid for unemancipated
minors with alternative for judicial determination of maturity (Ashcroft,
1983)
- qualified
parental notice requirement valid (Matheson, 1981)
- invalid
to prohibit abortion in otherwise qualified outpatient facility (Ashcroft)
- permissible
to prohibit public funding (Beal and Maher 1977; Harris,
1980), use of public facilities (Poelker,
1977), even to prohibit publicly-funded professionals to counsel about
abortion (Rust v. Sullivan, 1991)
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY, p. 633 (1992).
- What
regulations are being challenged, and what is their purpose?
- informed consent, including 24-hour waiting
period, including availability of advocacy materials
- parental informed consent, with judicial bypass,
for minors
- spousal notice for married women
- "medical emergency" exception for all
these requirements
- reporting requirements for providers
- Is
the judgment of the court inconsistent with Roe v. Wade?
- How
does Roe compare with other major doctrines that the Court has
overruled?
- National League of Cities/Garcia
- Lochner/West Coast Hotel
- Plessy/Brown
- In
what respect(s) is the "trimester analysis" of Roe
abandoned here?
- Is viability still a flexible medical concept?
- Is the end of first trimester still relevant to
state's interest in life of fetus?
- Does
the state have a legitimate interest in discouraging a woman from
exercising her right to have an abortion? A "compelling" one?
- What
limits does the Court place on the state's advocacy against abortion?
- What
is the significance of the Court's inability to muster a clear majority on
the various issues relating to abortion?