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

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  •  Undue burden =/ strict scrutiny (none)
    The state doesn't have to prove a compelling interest; it needs to demonstrate that its proposed regulations do not present an "undue burden" to a woman's exercise of her right to choose.  What that means, of course, is totally unknown, and the best dissection of the incoherence of the undue burden test is in Scalia's Casey dissent.  I won't repeat that here.  But I don't see what part of Casey requires a demonstration of a compelling interest when a state promulgates abortion regulations.

    The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

    by Categorically Imperative on Wed Oct 19, 2005 at 01:21:40 AM PDT

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    •  Wrong (none)
      Instead of repeating empty words I suggest you do the actual thinking of the result and how it was achieved.

      I swear to God sometimes you kids get brainwashed in school and stop using your own brains.

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 05:12:43 AM PDT

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    •  Consider these words (none)
      "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."

      It annoys me when a brilliant guy like you check his brain at the door.

      QWQ does nothing but tell me what Ralph Neas said.

      I love Ralph but he is full of shit on this particular point.

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 05:51:22 AM PDT

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    •  And Scalia's dissent (none)
      is SHIT.

      The Opinion of the Court on undue burden, which is a plurality -- the rest of the opinion is a majority opinion, is perfectly rational and cohernent.

      Scalia is a dishonest hack in his dissent as he is ALWAYS!

      The dissection you praise is complete and utter hackery and full of lies and nonsense - as Scalia ALWAYS ALWAYS ALWAYS is.

      Why you defend that scumscuker is beyond me.

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 06:05:57 AM PDT

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    •  Some Scalia BS (none)
      The joint opinion frankly concedes that the amorphous concept of "undue burden" has been inconsistently applied by the Members of this Court in the few brief years since that "test" was first explicitly propounded by JUSTICE O'CONNOR in her dissent in Akron I, See 462 U.S. 416  (1983). See ante at 876. 3  Because the three Justices now wish to "set forth a standard of general application," the joint opinion announces that "it is important to clarify what is meant by an undue burden." Ibid. I certainly agree with that, but I do not agree that the joint opinion succeeds in the announced endeavor. To the contrary, its efforts at clarification [505 U.S. 833, 986]    make clear only that the standard is inherently manipulable, and will prove hopelessly unworkable in practice.

      The joint opinion explains that a state regulation imposes an "undue burden" if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Ante, at 877; see also ante, at 877-879. An obstacle is "substantial," we are told, if it is "calculated[,] [not] to inform the woman's free choice, [but to] hinder it." Ante, at 877. 4 This latter statement cannot [505 U.S. 833, 987]   possibly mean what it says. Any regulation of abortion that is intended to advance what the joint opinion concedes is the State's "substantial" interest in protecting unborn life will be "calculated [to] hinder" a decision to have an abortion. It thus seems more accurate to say that the joint opinion would uphold abortion regulations only if they do not unduly hinder the woman's decision. That, of course, brings us right back to square one: defining an "undue burden" as an "undue hindrance" (or a "substantial obstacle") hardly "clarifies" the test. Consciously or not, the joint opinion's verbal shell game will conceal raw judicial policy choices concerning what is "appropriate" abortion legislation.

      Nonsense! Utter BS! Every question requires the application of judicial judgment. Always!

      It is the utter dishonesty of Scalia to pretend it does not.

      He is a scumsucker.

      This is the evisceration you speak of? IT is more of the typical BS that Scalia tosses around.

      The author of Business Electronics has the unmitigated gall to discuss "raw judicial policy choices" as if he is not the Supreme  legislator from the bench? You have go to be kidding me.  

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 06:31:29 AM PDT

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      •  Oh come on (none)
        The Court at one point states that "an undue burden is an unconstitutional burden."  Great, but what the heck does that mean; i.e. why is it an unconstitutional burden?  Because it fails strict scrutiny?  Intermediate scrutiny?  Rational basis?  The Court never explains, and then further muddies the water by "arguing" that an undue burden is a substantial burden meant to hinder a woman's choice to get an abortion.

        Scalia is quite correct to point out that ANY regulation of the sort discussed in Casey will be calculated to hinder abortions and equally correct to assert that, reading the plurality, it appears that the main invalidating feature of any abortion regulation will be its effectiveness in preventing abortions.  The plurality's construction is tantamount to allowing states to pass only futile restrictions.  And the plurality's entire exercise exists solely to tapdance around the issue and find a way to uphold Roe, even in name only.  

        I defy to to explain to me a coherent basis for the undue burden test or even to substantiate the plurality's claim that the undue burden test was a part of the Court's privacy jurisprudence prior to Casey (and isolated mentions in concurring opinions don't count).  Casey is an obvious compromise decision devoid of any principle whatsoever, and nowhere is that more plain than in the undue burden portion of the plurality opinion.

        The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

        by Categorically Imperative on Wed Oct 19, 2005 at 08:20:04 AM PDT

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    •  And here Scalia lies (none)
      The joint opinion cannot possibly be correct in suggesting that we would uphold such legislation on the ground that it does not impose a "substantial obstacle" to the exercise of First Amendment rights. The "undue burden" standard is not at all the generally applicable principle the joint opinion pretends it to be; rather, it is a unique concept created specially for this case, to preserve some judicial foothold in this ill-gotten territory. In claiming otherwise, the three Justices show their willingness to place all constitutional rights at risk in an effort to preserve what they deem the "central holding in Roe." Ante, at 873.

      As if he is unfamiliar with the obsecenity line of cases.

      He is an obscenity.

      The SCOTUS is Extraordinary.

      by Armando on Wed Oct 19, 2005 at 06:33:40 AM PDT

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      •  The plurality (none)
        When it explains the undue burden test, details an application to abortion cases that is made up from whole cloth and is, at best, loosely analogous to the obscenity line of cases.  Scalia's point, which is well-taken, is that the undue burden test has never been the controlling standard in the Court's privacy cases.  The plurality launches into an extended counterargument to Scalia, but its cobbling together of concurrences and isolated dicta basically proves Scalia's point: The undue burden test in Casey is a departure from prior precedent.

        The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

        by Categorically Imperative on Wed Oct 19, 2005 at 08:28:00 AM PDT

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      •  Better example... (none)
        The Undue Burden test on time, place, and manner restrictions of Assembly, dating from Ward v Rock Against Racism.

        I am not currently Licensed to Practice in this State. Or yours.

        by ben masel on Wed Oct 19, 2005 at 08:43:45 AM PDT

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