10 Sdp Abortion - Constitutional Law

Grounds for Challenge > In Violation of Individual Rights > Individual Rights > Abortion

Abortion: Undue Burden

The right to choose to have an abortion is a FR.

Pre-Viability: flat prohibitions on abortions are invalid, and any regulation of pre-viability abortion is invalid if it is an undue burden. A law constitutes an undue burden if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion. “Purpose or effect” analysis is as follows:(1) Purpose: caselaw points to this being an objective inquiry, i.e. whether a conceivable legitimate state interest could be motivating the law. If direct or circumstantial evidence shows that the actual purpose is in fact to create a substantial obstacle, then that would also suffice to show purpose. A subjective inquiry is likely not the required threshold, however, since Congress could circumvent this prong by simply indicating expressly that its purpose was “to promote fetal health.” Legitimate state interests outlined in Carhart include (1) protecting the health of the woman and life of the fetus; (2) protecting the woman’s emotional health; (3) reducing the number of abortions; (4) and regulating the medical profession generally.

• (2) Effect: This inquiry asks whether the regulation has the effect of creating a substantial obstacle in a large fraction of the subset of women whose behavior was in fact changed by the existence of the law, i.e. those women who would not have chosen childbirth but for the law.

• (3) “Substantial Obstacle”: given the state’s interest in potential life and maternal health, throughout pregnancy the state may take measures to ensure the woman’s choice is informed, and such measures will not be invalidated as undue burdens as long as their purpose is to persuade the woman to choose childbirth over abortion. Only where the regulation impedes the woman’s ability to choose abortion over childbirth is there an undue burden. After Casey, per se substantial obstacles include (1) spousal notification requirements and (2) forcing a woman to choose the more dangerous method of abortion among alternatives. After Casey, per se non-substantial obstacles include (1) record-keeping procedures/recording requirements; (2) minor parental notification requirements; (3) informed consent measures, including persuasive, truthful, non-misleading materials against abortion—questionable as to its potential scope, such as displaying graphic abortion images, and other “persuasive” measures which themselves might undermine the state’s purported interest in the mother’s mental health; and (4) 24-hour waiting periods between the initial visit and the procedure itself—questionable as to how such a waiting period would not in many situations be equally if not more burdensome than a spousal notification requirement, especially in indigent women/working mothers who may have little or no access to transportation or sufficient time away from work.

Post-Viability: states may restrict abortions as they see fit but must provide exceptions for therapeutic abortions (those performed to preserve the health or life of the mother).

Abortion Funding Issues: the state may pay for childbirth expenses but refuse to pay for abortion expenses where (1) the abortion is non-therapeutic and (2) the...