Undue Burden Test

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apl6783
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Undue Burden Test

Postby apl6783 » Sat Apr 28, 2012 9:48 pm

Question - My understanding is that if the law's purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion then the law is unconstitutional.

On the purpose side- If their purpose is merely to persuade, that's fine.

On the effect side- If the effect of the law is to prohibit or prevent a substantial # of women from making the decision to obtain an abortion then - unconstitutional.

In Casey, they said the spousal notification provision was likely to prevent (or did prevent, whatever) a significant number of women from getting an abortion so it was unconstitutional. Does this not make sense to anyone else? Has the court essentially said that if your purpose is to persuade, and you're successful in too many instances, then the law is unconstitutional? That is, isn't the spousal notification provision just there to persuade her not to get it, but then since it's so successful it's unconstitutional?

I thought that so long as the ultimate decision to get the abortion was left with the woman, then the law was okay. Under that standard then, the parental consent provision is no good, but why is the spousal notification provision no good?

Geist13
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Re: Undue Burden Test

Postby Geist13 » Sat Apr 28, 2012 10:03 pm

spousal notification is not effective because it is persuasive. It is effective because it can put the fear of domestic abuse and or ostricization in a woman's heart. It's not persuading, it's effectively preventing. How does forcing a woman to tell her husband convince her that abortion is the wrong choice? It doesn't. It just says there will be husbandly repercussions if you go through with this. In this sense it removes the decision from the woman's hands. The choice between being beaten and not pursuing an abortion is not a choice. Or that's the argument I would make anyway. I don't remember Casey that well, but I believe they said something along those lines.

Plus the test can't be that measures are okay so long as there is a choice. That's no different than just saying so long as it's not prohibited, the state can do whatever it wants. Its more nuanced than that.

Geist13
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Re: Undue Burden Test

Postby Geist13 » Sat Apr 28, 2012 10:10 pm

from the casey section in my con law II outline.

ii. UNDUE BURDEN in Casey
A. Until viability, the state has no compelling interest in proscribing abortions.
B. However, the State may enact regulations to ensure that the woman's choice is an informed one so long as they do not impose an undue burden on the woman's right to receive an abortion.
C. These regulations must be rationally related to the interest of informed decision making and may not impose any substantial burden on the mother.
D. An undue burden exists if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
E. All post-viability regulations and proscriptions, must contain a health and well being of the mother exception.

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istara
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Re: Undue Burden Test

Postby istara » Sat Apr 28, 2012 11:44 pm

apl6783 wrote:In Casey, they said the spousal notification provision was likely to prevent (or did prevent, whatever) a significant number of women from getting an abortion so it was unconstitutional. Does this not make sense to anyone else? Has the court essentially said that if your purpose is to persuade, and you're successful in too many instances, then the law is unconstitutional? That is, isn't the spousal notification provision just there to persuade her not to get it, but then since it's so successful it's unconstitutional?


My understanding is that there were actually very few women, overall, who would be effected by spousal notification requirements (less than half of women seeking abortions were married, and of those, most women tell their spouses). But, because those notice requirements created an effective veto power in the spouse with threats of domestic violence to many, if not most, of the women in that position, the burden is an unconstitutional limit on a woman's right to an abortion.




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