Well, the Supreme Court said something very different in Carhart. And in either case, that still makes Themis's explanation partially wrong.Tanicius wrote:Abortion is intermediate scrutiny, not rational basis.mmmnnn wrote: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.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.
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.
Also:
We should assume the modern trend doesn't apply on the MBE?Question Text: A patient sued her physician for malpractice due to the physician’s failure to timely diagnosis the patient’s diabetes. At trial, the patient offered testimony from a national expert that the physician’s failure to give the patient a newly developed test constituted a breach of the national standard of care. The physician countered this testimony with his own expert testimony that no physician within the local area utilized the new test. Consequently, the physician’s expert concluded that the required standard of care was not breached. The physician moved for summary judgment. How should the court rule on the motion?
Deny the motion, because a physician is held to a national standard of care.
Deny the motion, because the court may determine that the local medical standards are negligent.
Grant the motion, because the physician’s proffered expert testimony established that his medical practices fell within the standard of care observed within the community.
Grant the motion, because a physician is normally held to a local standard of care.
Rationale: Answer choice B is correct. Ordinarily, a professional person is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. However, while evidence of custom in a community or profession may be offered to establish the proper standard of care, such evidence is not conclusive. The court may determine that the entire community or profession may be negligent. Thus, while the physician may have complied with widespread local practices, the court may determine that those practices are negligent. For that reason, answer choices A, C, and D are incorrect. (Note: The modern trend is to subject medical specialists to a national standard of care.)
I just got a bit worried since I got really tired during the practice 3 hour MBE exam.
