solidsnake wrote:BobSacamano wrote:Journeybound wrote:So here is another question. In Casey, the court began using an "undue burden test" instead of "strict scrutiny." If you find a fundamental right, are you going to argue the strict scrutiny approach, even though the court really doesn't even mention it in Glucksberg? Is it gone? Frick... lol.
They don't really use "undue burdens" instead of strict scrutiny, they use the undue burdens test in analyzing whether the right has actually been infringed. If the law poses an undue burden on abortion, then it is subjected to strict scrutiny.
No thats wrong. If a state law imposes an undue burden on a woman's fundamental right to get an abortion pre-viability, it is unconstitutional under 14A. If a fed law does the same, it is unconstitutional through reverse incorporation of sub due process into 5A. The undue burden test replaces strict scrutiny only for abortions. As to whether a regulation is an "undue burden" is pretty subjective, just make args on BOTH SIDES and look at what has been called an undue burden and what hasn't (e.g., provisions of Casey, Gonzales v. Carhart, etc.) and analogize/distinguish. Law exams aren't that deep as long as you have a technical mastery of the material.
Yup. Spot on.