lesson 24

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

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

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

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

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

danger: 14 states + dc

all stages: 30 states

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

• roe couldn’t get an abortion

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

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

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)

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

“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

catholics and evangelicals uniting to form pro-family coalitions

issue of presidential politics

1980s to 2010s, continues today

become more contentious

when Justice Scalia dies in 2016

• republican controlled Senate refused to hold any nominations

  • Trump ran w/ pro-life justices campaigning

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

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

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

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

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

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

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

26 states

Mississippi banned most abortions after 15 wks

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

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

• 80 amicus briefs for Miss

• 50 amicus briefs for Jackson

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

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

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

• has created enflamed debate and deepening division

substantive liberty interest

promoted equality

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

bodily integrity, familial relationships, procreations

requires SC to uphold roe/casey

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

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

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

affect how people vote and some unexpected swings in states