Substantive Due Process- Casey

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Casey- Meaning

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Court reaffirms Roe and maintains the right of a woman to obtain an abortion. The state cannot prohibit abortion prior to viability, but after viability the state may prohibit abortion except to preserve the women's life or health. However, the court rejects the trimester framework and says that state has interest in protecting the health of mother in first timsester and interest in protecting life of the fetus. Also strict scrutiny is replaced by undue burden standard.

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Griswold- Issues addressed by Kennedy

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1. why is abortion fundamental? 2. how to decide if a right is fundamental? 3. Issue of legitimacy.

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Casey- Kennedy

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Why is abortion a fundamental right protected by substantive due process? Substantive due process is a valid theory and protects personal decisions relating to marriage (Loving v. Virginia), procreation (Griswold and Eisenhart), family relations (Moore v. City of Cleveland), child rearing (Eisenhart), education (Meyer v. Nebraska). These are matters central to personal dignity and autonomy cenral to liberty. How to determine whether a right is fundamental? SC must use Harlan’s approach in his dissent in Poe. Tradition and History. Regarding legitimacy issue in Roe, Kennedy turns the issue around and says privacy is fundamental because at the heart of liberty is the right to define one’s own existence. Because it’s such a metaphysical question, it should be protected by SDP.

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Griswold- Defining the right

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Argument against tradition and history--how do you define tradition? The more broadly the right is defined, the more likely it will includes things that did not have specific support. Scalia argued that abortion was illegal when the 14th was passed. So no tradition. Kennedy disagrees and says that tradition must be considered in a broader way. for example the tradition of protecting certain types of important decisions with respect to intimate choices.

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Casey- Souter

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General rule is that the court gives fair degree of weight to stare decisisas there is presumption of legality. Four different criteria that a prior precedent should be overruled. 1. Rule proves to be unworkable E.g., National League of Cities 2. Precedent in question was a dead end SC never followed up on the precedent. 3. Underlying facts have changed . When the rule is based on specific factual context. 4. Reliance issue. One of the primary justification is that people have the right to rely on judicial decisions. SC says that reliance is more important in the commercial area.

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Casey- Reliance

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Reliance People have relied on Roe to make personal decisions. Bloom believes that there was another reliance interest that the SC does not mention, that is the fact that Roe had become one of the biggest SC cases ever. It had an iconic status.

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Casey- O'Connor

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Substantive due process standard is now undue burden, not strict scrutiny. Viability is the core of Roe. But after viability, the state has the right to prohibit abortion, unless the health of the woman is in danger. Viability is still the core. But O’Connor makes significant chagnes. Rejects the Trimerster framework. Substantial Due process standard is now undue burden. Strict scrutiny still applies in other SDP issues, but not abortion

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Casey- What is undue burden?

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When a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. But the state may take measures to ensure that the woman’s choice is informed and measures designed to advance the interest will not e invalidated as long as their purpose is to persuade the woman to choose birth over abortion.

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Casey- undue burden explained

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if its purpose or effect is to place a substantial obstacle in the path of a woman seeking abortion, but the state can take measure to ensure the woman is informed, and designed to advance this interest (confusing because the SC is saying both that the state cannot act to create obstacles to abortion, but that it can act to discourage abortion). Court implies that undue burden exists only if a court concludes that the law will prevent women from getting abortions. The question is then how many women will be adversely affected. in Casey the SC said that a significant number of women would not be able to get abortion, thus spousal consent was struck down. in Gonzalez v. Carhart the SC said that for a law to be invalid, there must be a showing that it would be undue burden fora large fraction of women.

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Gonzalez v. Carhart

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SC upheld the federal Partial Birth Abortion Ban Act. The act did not have a health exception and it was more broadly written than the SC would allow in Stenberg. The state argued interest in dignity of life and the undermining of the health profession Meaning of the case: the substantial burden test lowers the threshold and puts more weight on the state side of the scale.