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The opinion doesn't mention fundamental rights or strict scrutiny, instead they use the undue burden standard. So, when analyzing an abortion regulation is the only issue whether it places an undue burden on the woman's right to choose? In other words: is strict scrutiny irrelevant when analyzing abortion regulations under substantive due process??

Inter Alia wrote:The opinion doesn't mention fundamental rights or strict scrutiny, instead they use the undue burden standard. So, when analyzing an abortion regulation is the only issue whether it places an undue burden on the woman's right to choose? In other words: is strict scrutiny irrelevant when analyzing abortion regulations under substantive due process??

Undue burden standard is a test under strict scrutiny. Abortion is a fundamental right, so strict scrutiny applies (already established under prior case law).

Bankhead wrote:

Inter Alia wrote:The opinion doesn't mention fundamental rights or strict scrutiny, instead they use the undue burden standard. So, when analyzing an abortion regulation is the only issue whether it places an undue burden on the woman's right to choose? In other words: is strict scrutiny irrelevant when analyzing abortion regulations under substantive due process??

Undue burden standard is a test under strict scrutiny. Abortion is a fundamental right, so strict scrutiny applies.

It's a semantics thing, but you don't really get anywhere by calling it a fundamental right. The court replaced all of the analysis you would usually do with a different test.

disco_barred wrote:

Bankhead wrote:

Inter Alia wrote:The opinion doesn't mention fundamental rights or strict scrutiny, instead they use the undue burden standard. So, when analyzing an abortion regulation is the only issue whether it places an undue burden on the woman's right to choose? In other words: is strict scrutiny irrelevant when analyzing abortion regulations under substantive due process??

Undue burden standard is a test under strict scrutiny. Abortion is a fundamental right, so strict scrutiny applies.

It's a semantics thing, but you don't really get anywhere by calling it a fundamental right. The court replaced all of the analysis you would usually do with a different test.

Okay, awesome. Thank you both so much. I swear con law is driving me insane with all this nonsense - I think I've been looking at it too long. Anyways, thanks!

disco_barred wrote:It's a semantics thing, but you don't really get anywhere by calling it a fundamental right. The court replaced all of the analysis you would usually do with a different test.

+1, I would not suggest saying it is the strict scrutiny/fundamental right test on your final unless your prof is the one that told you that