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View Diary: Understanding the Right to Privacy And the Right to Choose (322 comments)

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  •  Two Points (none)
    1. If that were correct, then after the Casey plurality found that the sposual notice provision imposed an undue burden, it would have applied the compelling state interest test.  It did not.  (Likewise, in Stenberg v. Carhart, the Court found an undue burden, but made absolutely no mention of the compelling state interest test).

    2. Even if that were correct, the addition of the undue burden standard before getting to strict scrutiny fundamentally weakens the protection for women.  Whereas previously any pre-viability restriction would trigger strict scrutiny, now only restrictions that rise to the level of undue burdens will trigger that protective standard.

    Seriously, do you really think that Justice Blackmun and all the pro-choice groups have it wrong?
    •  Two different points (none)
      An undue burden requires a compelling state interest is the point.

      Second, the same result coul;d easily have been achieved under compelling state interest by merely finding it did not impinge on the fundamental right to privacy.

      You have no explanation for how the test is different do you?

      How would the result be different?

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 05:14:56 AM PDT

      [ Parent ]

      •  Saying it doesn't make it so (none)
        Armando repeats:

        An undue burden requires a compelling state interest is the point.

        Ah, yes.  That's why the Court has never applied the compelling state interest test in an undue burden case.

        For all his rhetoric (more than a dozen responses and running), notice one important thing:

        Armando has failed to cite a single application of the compelling state interest test in either Casey or any other Supreme Court abortion case since then.

        More from Armando:

        How would the result be different?

        See, Casey -- most of the state regulations in that case were upheld under undue burden.   Blackmun says they all would have been struck down under Roe.

        I'll take the author of Roe over Armando on this point.

    •  And yes (none)
      they all have it wrong.

      That the result is different than they liked does not mean the test has changed.

      IT is that fundamental flaw in their thinking that remains unexplained by you.

      IT is not that you or they can actually explain what is different about the test.

      Because you can't.

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 05:17:08 AM PDT

      [ Parent ]

      •  Explanation (none)
        It is not that you or they can actually explain what is different about the test.

        Actually, I explained it in my comment just above yours.  Let me do it again:

        Whereas previously any pre-viability restriction would trigger strict scrutiny, now only restrictions that rise to the level of undue burdens will trigger that protective standard.
    •  They are wrong (none)
      From Casey:

      "Nor will courts building upon Roe be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty."

      You understand yet?

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 05:52:15 AM PDT

      [ Parent ]

      •  No, you are wrong, again (none)
        According to Casey, the "central holding of Roe" was not that abortion is a fundamental right, any restrictions of which warrant strict scrutiny.

        Rather, the "central holding" of Roe according to Casey was that the state cannot prohibit abortion pre-viability.

        An important ruling, to be sure, but one that declined to preserve traditional fundamental rights analysis for restrictions on abortion.

        From Casey on, abortion was treated as "unique" by the Supreme Court, and restrictions have been subject to the undue burden analysis.

        As a direct result, many restrictions that would have been struck down in Roe have been upheld under Casey, as in Casey itself.

        Bottom Line:  

        There is no more "compelling state interest" test in abortion law.  Rather than continuing the case-by-case analysis of state interests demanded by strict scrutiny, the plurality in Casey decided to incorporate the state's interest into its analysis of what the new test should be, and that new test is the undue burden standard.  Here's the Court explaining that in its summary:

        To protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion.

        Do you understand yet?

    •  As for your point 1 (none)
      Casey answers it here:

      From what we have said so far, it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited, however, that, from the outset, the State cannot show its concern for the life of the unborn and, at a later point in fetal development, the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.

      That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term. [505 U.S. 833, 870]  

      We conclude the line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis. Any judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 759 ; Akron I, 462 U.S., at 419 -420. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe's statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at 40-41, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today.

      The compelling state  interest test applied.

      You quarrel with the RESULT, not the test.

      Now, will you go explain that to Ralph et al. Because they are wrong on the test changing.

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 05:57:41 AM PDT

      [ Parent ]

      •  Are you kidding?!? (none)
        Reread the first sentence in that quote, Armando:

        From what we have said so far, it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy.

        "Some freedom" is not what strict scrutiny protects.

        "Fundamental rights" are what strict scrutiny protects.

        That is why Casey is so troubling to supporters of legal choice.

        More from your quote:

        the State has a legitimate interest in promoting the life or potential life of the unborn

        "Legitimate" interests are not what strict scrutiny demands.

        "Compelling" interests are what strict scrutiny demands.

        Finally, you betray in this comment a fundamental misunderstanding of what the compelling state interest test is.  It's a test used to judge, on a case-by-case basis, particular restrictions of a right.  It is not a test used by the Court to determine the scope of rights in the first instance, which is what the Casey Court is doing in the section you quote.

         

    •  And more (none)
      The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.

      On the other side of the equation is the interest of the State in the protection of potential life. The Roe Court recognized the State's "important and legitimate interest in protecting the potentiality of human life." Roe, supra, at 162. The weight to be given this state interest, not the strength of the woman's interest, was the difficult question faced in Roe.

      . . . Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but also the State's "important and legitimate interest in potential life." Roe, supra, at 163. That portion of the decision in Roe has been given too little acknowledgment and implementation by the Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. See, e.g., Akron I, supra, at 427. Not all of the cases decided under that formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the health of the woman and in protecting the potential life within her. In resolving this tension, we choose to rely upon Roe, as against the later cases. [505 U.S. 833, 872]

      Get it yet? The Court is saying that compelling state interest was not properly weighed before, not that the rule is changing.  

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 06:01:18 AM PDT

      [ Parent ]

    •  Finally (none)
      this is how Roe did it:

      Roe established a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman's health, but not to further the State's interest in potential life, are permitted during the second trimester; and, during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake. Roe, supra, at 163-166. Most of our cases since Roe have involved the application of rules derived from the trimester framework. See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists, supra; Akron I, supra.

      Casey changed this not one whit.

      If you want to argue that Akron was overruled, that might be of some merit.

      But Casey is down the line with Roe on compelling state interest analysis.

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 06:03:15 AM PDT

      [ Parent ]

      •  See this is what Casey did (none)
        The abortion right is similar. Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. See Hodgson v. Minnesota, 497 U.S. 417, 458 -459 (1990) (O'CONNOR, J., concurring in part and concurring in judgment in part); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 519 -520; (1990) (Akron II) (opinion of KENNEDY, J.); Webster v. Reproductive Health Services, supra, at 530 (O'CONNOR, J., concurring in part and concurring in judgment); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 828  (O'CONNOR, J., dissenting); Simopoulos v. Virginia, 462 U.S. 506, 520  (1983) (O'CONNOR, J., concurring in part and concurring in judgment); Planned Parenthood Assn. of Kansas City Mo., Inc. v. Ashcroft, 462 U.S. 476, 505  (1983) (O'CONNOR, J., concurring in judgment in part and dissenting in part); Akron I, 462 U.S., at 464  (O'CONNOR, J., joined by WHITE and REHNQUIST, JJ., dissenting); Bellotti v. Baird, 428 U.S. 132, 147  (1976) (Bellotti I).

        For the most part, the Court's early abortion cases adhered to this view. In Maher v. Roe, 432 U.S. 464, 473 -474 (1977), the Court explained: Roe did not declare an unqualified "constitutional right to an abortion," as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. See [505 U.S. 833, 875]   also Doe v. Bolton, 410 U.S. 179, 198 (1973) ("[T]he interposition of the hospital abortion committee is unduly restrictive of the patient's rights"); Bellotti I, supra, 428 U.S., at 147 (State may not "impose undue burdens upon a minor capable of giving an informed consent"); Harris v. McRae, 448 U.S. 297, 314 (1980) (citing Maher, supra,). Cf. Carey v. Population Services International, 431 U.S., at 688 ("[T]he same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely").

        And that is perfectly consistent with Roe and the compelling interest standard.

        The SCOTUS is Extraordinary.

        by Armando on Wed Oct 19, 2005 at 06:08:12 AM PDT

        [ Parent ]

        •  And as applied to the consent requirement (none)
          We conclude, however, that informed choice need not be defined in such narrow terms that all considerations of the effect on the fetus are made irrelevant. As we have made clear, we depart from the holdings of Akron I and Thornburgh to the extent that we permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when, in so doing, the State expresses a preference for childbirth over abortion. In short, requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the woman to choose childbirth over abortion. This requirement cannot be considered a substantial obstacle to obtaining an abortion, and, it follows, there is no undue burden.

          There. In a nutshell. It did not impinge on the Constitutional right.

          Undue burden and compelling interest are not inconsistent.

          That is the simple lesson.

          I hope you have now seen the light.

          The SCOTUS is Extraordinary.

          by Armando on Wed Oct 19, 2005 at 06:14:06 AM PDT

          [ Parent ]

          •  And disagreement (none)
            despite using the same standard:

            STEVENS:

            In my opinion, a correct application of the "undue burden" standard leads to the same conclusion concerning the constitutionality of these requirements. A state-imposed burden on the exercise of a constitutional right is measured both by its effects and by its character: a burden may be "undue" either because the burden is too severe or because it lacks a legitimate, rational justification.
             

            The SCOTUS is Extraordinary.

            by Armando on Wed Oct 19, 2005 at 06:16:28 AM PDT

            [ Parent ]

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