lesson 24

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right to privacy

Griswold v Connecticut

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1

right to privacy

Griswold v Connecticut

specific guarantees in the bill of rights extend from those guarantees that help give them life and substance

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2

impact of Griswold v Connecticut

replaces Lochner's right to liberty of contract as an unenumerated right worthy of constitutional protection

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3

Griswold v. Connecticut (1965)

facts

1879 Connecticut law banned use of birth control, even among married couples

- Griswold, Planned Parenthood Director and Dr. Lee from Yale arranged the test

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4

Girswold v. Connecticut (1965)

holding

court struck down the law on the ground it violated the right to marital privacy

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5

world bf Roe

1970s how many states allowed abortion when a women’s health was in danger

how many states prohibited abortion at all stages of pregancy

danger: 14 states + dc

all stages: 30 states

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6

Roe v Wade (1973)

law

texas prohibited abortion except when necessary to save mother’s life

  • roe couldn’t get an abortion

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7

Roe v Wade (1973)

question presented

does the constitution recognized the right of a woman to terminate her pregnancy by abortion

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8

Roe v Wade (1973)

holding

constitution creates a right to privacy that encompasses a woman’s fundamental right to terminate her pregnancy

the women’s right to privacy (from Griswold) trumps the state’s police powers

  • whether it found in the 14th or 9th is board enough to encompass a woman’s right to terminate her pregnancy

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9

Roe v Wade (1973)

holding - 3 semester framework

  1. first trimester: state may not regulate

  2. second trimester: state may regulate to safeguard women’s health

(during the first 2 trimester the decision is largely left up to the parents, and the doctor)

  1. third trimester: state’s interest in preserving the life of an unborn is compelling, states may limit or ban

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10

what 2 general strategies did Congress purse in their attempt to limit Roe

“right to life“ amendments

  • congress enacted 30 laws restricting the availability of abortions

    • congress barred the use of funds for programs in which abortions is included as a method of family planning

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11

who is pushing for the anti-abortion legislation

catholics and evangelicals uniting to form pro-family coalitions

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12

abortion and presidential elections

issue of presidential politics

1980s to 2010s, continues today

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13

abortion and judicial nominations

become more contentious

when Justice Scalia dies in 2016

  • republican controlled Senate refused to hold any nominations

    • Trump ran w/ pro-life justices campaigning

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14

Planned Parenthood v Casey (1992)

challenged law

abortion providers challenged Pennsylvania abortion restrictions that require

  • doctors to tell women about fetal development to gain “informed consent“

  • 24 hr waiting period

  • minors to obtain consent of parent or judge

  • married women to notify her husband w/ limited exceptions

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15

Planned Parenthood v Casey (1992)

question presented

did the appellate court err in upholding all provisions except spousal consent?

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16

Planned Parenthood v Casey (1992)

Troika

Scouter, O’Connor, Kennedy join together to co-write an opinion, upholds most of the restrictions in the law under O’Conner’s “undue burden“ test

  • Stevens and Blackmun join their opinion

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17

Planned Parenthood v Casey (1992)

holding (5/4)

reaffirmed Roe’s central holding (right to abortion) but replaced the 3 trimester formatting

  1. BF viability (around 20 weeks) women can obtain an abortion w/out “undue interference from the state“

  2. AF viability State can restriction abortions as long as there is an exception for health/safety of the women

  3. state has legitimate interest in protecting the health of women and life of the fetus

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18

Roe → Casey changes

right to abortion is no longer considered “fundamental right“ of pregnancy

is now a “liberty interest to chose to terminate or continue her pregnancy bf viability“

they rely on the right to liberty under the 14th amendment

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19

Planned Parenthood v Casey (1992)

Scalia dissent

question if this is a liberty protected by the Constitution of the US

  • the constitution says nothing about it

  • the longstanding traditions of American society have permitted it to be outlawed

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20

why did Kennedy O’Connor and Scouter given in Casey for not overruling Roe

they didn’t want the court to be seen as a “naked-power organ“ a political institution who decisions are simply overturned on the personnel changes on the court

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21

how many states asked the court to overturn Roe and Casey in Dobbs

26 states

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22

Dobbs v Jackson Women’s Health (2022)

facts, law challenged

Mississippi banned most abortions after 15 wks

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23

Dobbs v Jackson Women’s Health (2022)

question presented

do all pre-viability bans on elective abortions violated the consitution

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24

Dobbs v Jackson Women’s Health (2022)

tea about the question

forced the hand of the court to rule on Casey/Roe

  • 80 amicus briefs for Miss

  • 50 amicus briefs for Jackson

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25

Dobbs v Jackson Women’s Health (2022)

majority opinion

  1. Abortion as moral issue that Americans disagree, Roe removed abortion from political process by finding Constitution protected a women’s right to choose, Roe/Casey are overruled

  2. the constitution does not protect abortion

    1. not enumerated

    2. not an unenumerated right bc it is not deeply rooted w/ our nation’s history/tradition (Washington v Glucksberg)

  3. stare decisis does not require upholding Roe / Casey

  4. legitimacy

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26

Dobbs v Jackson Women’s Health (2022)

majority - standard from Washington v Glucksberg

rights that are not mentioned in the Constitution must be deeply rooted in the nation’s traditions and history

  • not an issue until late 20C, entirely unknown from American Law

must be implicit to the concept of ordered liberty

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27

Dobbs v Jackson Women’s Health (2022)

majority- why stare decisis does not apply

Roe is an abuse of judicial authority, wrong from the start, reasoning is weak and damaging

  • has created enflamed debate and deepening division

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28

Dobbs v Jackson Women’s Health (2022)

dissent (Breyer, Sotomayor, Kagan)- constitutional interested that were protected by Casey and Roe

substantive liberty interest

promoted equality

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29

Dobbs v Jackson Women’s Health (2022)

dissent- Casey reaffirmed Roe

first stages of pregnancy the women has the right to choose, the gov can not control a women’s body or the course of her life, determining her future

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30

Dobbs v Jackson Women’s Health (2022)

dissent- what other rights could losing their constitutional protection now

bodily integrity, familial relationships, procreations

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31

Dobbs v Jackson Women’s Health (2022)

dissent- stare decisis

requires SC to uphold roe/casey

women have relied on the availability of abortion both in structuring their relationships and planning their lives

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32

reaction to dobbs from the white house

biden signs bill to protect same-sex marriage and interracial marriages

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33

reaction to dobbs the public

unfinished opinion was leaked: lead to protest at the court, people outside of justices’ homes, large outcry from the public

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34

reaction of dobbs midterm elections

affect how people vote and some unexpected swings in states

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