A state law provided that before an abortion may be performed a woman must (a) have a consultation with a physician, who should try to persuade the woman to have her baby, and (b) wait another 24 hours before seeking an abortion. A woman in the middle of her first trimester of pregnancy challenges the constitutionality of the law. Would a court be likely to strike down this law?
Answer Choices:
No, because the state has a rational basis for requiring the consultation and 24-hour waiting period.
No, because the state’s purpose is not to hinder women’s right to choose abortion, but merely to persuade women to choose birth and to ensure that their decisions are deliberate.
Yes, because the law violates the woman’s liberty interest in abortion protected by the Fourteenth Amendment.
Yes, because a state’s power to regulate abortions does not include the power to impose waiting periods.
Rationale: Answer choice B is correct. A state cannot place an “undue burden” on a woman’s fundamental Fourteenth Amendment Due Process liberty interest in having an abortion before fetal viability. However, the state law here does not constitute such an undue burden, as states may try to persuade women not to choose abortion and may impose reasonable waiting periods, so long as states do not hinder a woman’s right to choose abortion thereafter. For this reason, answer choices C and D are incorrect. Answer choice A is incorrect because a law that interferes with a fundamental right, such as abortion, is subject to strict scrutiny, not rational basis analysis.
To me, B is an irrelevant statement and A is correct. The Supreme Court has expressly rejected strict scrutiny for all abortion restrictions, and said in
Carhart that a restriction must pass rational basis and not be an undue burden. So, the application of "undue burden" that I learned in law school is this: If the restriction imposes no undue burden, it's reviewed under the rational basis test; if it imposes an undue burden, it gets quasi-strict scrutiny.
I decided (1) this is not an undue burden, so (2) it must pass only rational basis review. I guess choice B is another way of saying "this is not an undue burden," but that doesn't mean A is wrong. In fact, it makes A more right, depending on what "undue burden" really means, which to my knowledge the Supreme Court has not fully explained.
Blah.
I know Adaptibar lets you have a free look at a sample questions/explanations... hopefully there's something like that at BarMax too. Definitely go for what's affordable at this point. I can't believe how much we've had to spend on this whole process already... and the hotel tab is going to be pricey too. Blah. If I wasn't 90 minutes away, I'd definitely commute!
actually, I'm going to double check too lol!
I guess I'll try to reach him from the portal, although whenever I've done that in the past, someone else responds...
