Abortion

SCOTUS does not care about the morals of the issue, only if it violates the constitution

Resist inputting your own morality!

Secular purpose -

Peterson v North Carolina

July 2018, North Carolina passed an abortion law.

• More than 250 anti-abortion protests

• 4 clinics were bombed

• 6 workers were killed

In response to popular demand, North Carolina passed a law that specified what conditions a woman could get an abortion

• “An abortion may not be performed for any reason in the state of North Carolina after the fetus is determined to viable outside of the womb.”

In October 2018, Jennifer Peterson and her doctor were arrested after she had an abortion

• She was in her 3th trimester

• her doctor claimed that she had a condition that may have killed her if she carried the child to term

  • Was confirmed by 3 separate doctors

  • Only 15% that the disease would have killed her

Peterson and her husband claimed that they did not want an abortion, but instead wanted to have their 11th child

Question:

Does this North Carolina law which states that women cannot have an abortion after the fetus is determined to be viable outside of the womb violate the 14th amendment of the US constitution

Griswold V Connecticut

Facts:

1879 Connecticut passed a law that banned the use of any drug, medical device, or other instrument in furthering contraception. Doctors cannot talk about birth control, counsel people about it.

• More pregnant people, lots of secular interest (more workers, people, electoral votes, people)

• Didn’t want people to have pre-marital sex

C. Lee Buxton, A gynecologist at Yale school of medicine opened an abortion clinic along with Estelle Griswold who was the had of Planned Parenthood in Connecticut

Buxton and Griswold were arrested for violating the law by counseling people about birth control

• right to privacy → reproduction

Their plan was to use the clinic to challenge the constitutionality of the statute under the Fourteenth Amendment before the Supreme Court. 

Question:

Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?

No where in the constitution is there a right to privacy. Griswold is asking SCOTUS to read the constitution, to uncover a right to privacy, and in deciding the right to reproduction freedom

Conclusion:

7-2 decision for Griswold

Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception

• While not in the constitution, the bill of rights creates “penumbras, or zones” to establish a right to privacy

First, Third, Fourth, and Ninth Amendments

• Justice Harlan argued that Due Process Clause of the Fourteenth Amendment protects the right to privacy. 

• Exists in the “shadow” of these amendments

• These rights do not exist without a “sphere of privacy” that prevents the government from intruding on your thought process. There would be no meaningful freedom of speech, religion

• 3rd amendment (quartering of troops). The house is protected by a sphere of privacy

• 4th amendment (search / seizures) privacy

• Reproductive issues fall within the sphere of privacy

Roe V Wade

Facts:

1970, Jane Roe sued Henry Wade (District Attorney of Dallas County, Texas)

She challenged a Texas law making abortion illegal except by a doctor’s orders to save a woman’s life (Life of the mother exception)

Roe alleged that the state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments

Question:

Does the Constitution recognize a woman's right to terminate her pregnancy by abortion?

1. Does the term “person” as used in the 14th amendment include the unborn?

2. Does the right to privacy include the right to an abortion?

Must be answered in this order!

Conclusion:

7 - 2 for Roe

The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman’s right to choose to have an abortion falls within that right to privacy. (Civil liberties)

• If a fetus is a person, they cannot be deprived of “life” - (14th amendment)

  • IF it is a person, you would have to give the fetus due process and the trial

  • the fetus would have to question the witnesses

• The answer is no (due to incorporation theory (meaning of the word liberty))

  • If person does refer to fetus, they are entitled to all liberties found in the bill of rights (free speech, religion, assemble, guns) which does not make sense.

  • The framers of the constitution were clearly not referring to the unborn.

• They are not talking about when “life begins”

• Yes and no, about privacy and abortion!

  • Trimester approach.

  • Time is important (people announce their pregnancy after the 1st trimester because most trimesters happen in it)

  • The fetus is less likely to become a “14 amendment person” in the 1st trimester

  • Fetus is more likely to become a “14 amendment person” after viability

  • In the first trimester, the governments interests is way less important than individual interests

A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right

First Trimester:

the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision

Second Trimester:

the state may impose regulations on abortion that are reasonably related to maternal health

• Viability

  • 22/24 weeks, the fetus achieves viability (if taken out of the womb, it would survive with the help of doctors)

  • Up until the point of viability, the standard of any reason matters

  • Once viability is achieved, the 3rd trimester laws happens

Third Trimester

Once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.

• Life of the mother exception

• Each state has different laws (federalism)

Webster v Reproductive Health Services

Facts:

1986, Missouri enacted legislation that prohibited access to abortion by placing restrictions on them

The statute's preamble indicated that "[t]he life of each human being begins at conception,"

Put into law the following restrictions: “public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability tests upon women in their twentieth (or more) week of pregnancy.”

Lower courts struck down the restrictions

Question:

Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment?

Conclusion:

5 - 4 decision for Webster

the Court held that none of the challenged provisions of the Missouri legislation were unconstitutional.

1. Court held that the preamble had not been applied in any concrete manner for the purposes of restricting abortions, and thus did not present a constitutional question.

2. the Court held that the Due Process Clause did not require states to enter into the business of abortion, and did not create an affirmative right to governmental aid in the pursuit of constitutional rights

3. the Court found that no case or controversy existed in relation to the counseling provisions of the law.

4. The Court upheld the viability testing requirements, arguing that the State's interest in protecting potential life could come into existence before the point of viability.

Planned Parenthood of Pa vs Casey

Facts

The Pennsylvania legislature amended its abortion control law in 1988 and 1989.

the law required informed consent and a 24 hour waiting period prior to the procedure. Applied to all women seeking abortion, (even in the first trimester)

• A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure)

• A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus.

• If you want an abortion, you have to jump through hoops

  • What is someone made you jump through hoops to give you freedom of speech?

These provisions were challenged by many abortion clinics

• A federal appeals court upheld all the provisions except for the husband notification requirement.

The hoops:

1. Minor → permission from parent, guardians, or judge

   1. How do you get a judge’s permission? how easy is it?

2. 24 hour waiting period

   1. Myth of drive through abortion

   2. abortion has never been used as birth control

3. Alternatives during the 24 hours waiting period (counseling)

   1. Raise the child, here are the services provided, adoption (here are the different options)

4. Married women must tell their husband

   1. Don’t need his permission, just tell him

Question:

Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade?

Conclusion:

5 - 4 for planned parenthood

the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions.

the justices imposed a new standard to determine the validity of laws restricting abortions.

The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden,"

• substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

the only provision to fail the undue-burden test was the husband notification requirement.

1. Minors needing permission

   1. Is OK

2. 24 hour waiting period

   1. is OK

3. Alternatives

   1. Is OK

4. Married telling husband

   1. NO (reasoning is due to domestic violence and the husband has nothing to do with the decision)

Dobbs

There is no right to have an abortion

The right to privacy does not extend to having an abortion

The states decide now

Can potentially extend to birth control

Some states have enshrined roe v wade into their constitution

Other states have restricted abortion with no exceptions

• Dobbs decision makes no reference to the life off the mother

No exceptions for rape, age, life of the mother

Why did the SCOTUS do that?

• Federalism

Opinion

Facts:

Question: Does this North Carolina law which states that women cannot have an abortion after the fetus is determined to be viable outside of the womb violate the 1, 3, 4, 9 ,14, amendment and the due process clause of the US constitution

Rule:

Reasoning w/ Roe: Griswold created a sphere of privacy in the shadow of the amendments. Roe created the trimester approach (states regulate in the 3rd trimester) and the life of the mother exception. Webster said that the due process clause said states did not have to enter into abortion which expanded their ability to restrict abortion while still upholding roe. In Casey, The undue burden question does not count because the fetus is in the 3rd trimester, which is after the fetus has achieved viability.