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Comment: Migrated to Confluence 4.0



-This opinion was very very very long...

-They decide to uphold the fundamental tenants of Roe: 1) Right of Woman to choose to have an abortion before viability. 2) Confirmation of the state's power to restrict abortion following viability. 3) State has a legitimate interest from the start of pregnancy to protect life of the woman and the fetus.
-They point out in a possible response to the Rhenquist dissent that neither the bill of rights nor the existing practices of law in place during the adoption of the 14th amendment limits the sphere of substantive liberty protected.
-"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion by the state."
-Another principle by which they uphold Roe is through stare decisis. They open the opinion with the line "Liberty finds no refuge in a jurisprudence of doubt".
-The ruling, they argue, shouldn't be overturned as it was not unworkable, two decades of legality had created a degree of reliance, and no evolution of legal principle had left the ruling weaker than its original state.
-Stare decisis is important because A) frequent overruling makes people lose faith in the ability of the court to make decisions and B) The court can't look like its bending to political pressures.
-And even though "We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate", overruling would lead to "profound and unnecessary damage to the court's legitimacy, and the Nation's commitment to the rule of law".
-They point out that although the woman can choose to have an abortion before viability, states can take steps to ensure the choice is "thoughtful and informed"
-They reject the trimester formula as undervaluing interest in the potential life of the fetus.
-The "without interference from the state" line in Roe was deemed an overstatement and balanced by the undue burden test:
-"Undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the state to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it."
-1) In cases of serious risk to the mother, abortions are allowed to save her life absent of regulations.
-2) A 24 hour waiting time doesn't constitute an undue burden.
-3) The second provision regarding spousal consent was thrown out however.
-4) Minors seeking abortions must have consent of at least one parent.
-5) Record keeping didn't constitute an undue burden.


-The interest in protecting potential life is not grounded in the Constitution.
-Statues requiring doctors to provide patients with materials specifically aimed at persuading her not to undergo the procedure are not neutral and are unconstitutional.
-The 24 hour delay is also unconstitutional A) as an attempt at wearing down the ability of the woman to exercise her right and B) because there's no evidence the added time will alter an opinion.
-"A woman who decides to terminate her pregnancy is entitled to the same respect as a woman who decides to carry the fetus to term".
-"A burden may be undue either because the burden is too severe or because it lacks a legitimate, rational justification."

-Notions of gender equality. "State restrictions on abortion compel women to continue pregnancies they may otherwise terminate".

-Joint decision "retains the outer shell of Roe V Wade, but beats a wholesale retreat from the substance of that case". They believed it was wrongly decided and should be overturned.
-Abortion decision should be considered sui generis because of the unique nature in terminating potential life. This draws a distinction from personal/family privacy and autonomy.
-The joint opinion rejects many of the views affirmed by Roe including: 1) Woman has a fundamental right to an abortion, 2) Abortion regulations are subject to strict scrutiny and compelling state interest, 3) the trimester framework used to analyze regulation.
-Stare decisis is a bad excuse because "correction through legislative action, save for constitutional amendment, is impossible".
-He spends a lot more time taking pot shots at the majority opinion and their use of stare decisis.
"The judicial branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of government comport with the constitution".
-Undue burden standard is based even more on a judge's subjective determinations than the trimester framework.
-What provisions are appropriate for regulating abortion should be decided by the legislatures.
-State has a legitimate interest in promoting the "integrity of the marital relationship"

-"The constitution says absolutely nothing about it, and the longstanding traditions of American society have permitted it to be legally proscribed"
-By using the rational basis test Scalia would have upheld the Pennsylvania statute in its entirety.
-"Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally "intimate" and "deeply personal" decisions involving "personal autonomy and bodily integrity".
-Parallels to Justice Taney who sat on the Dred Scott Case. He also may have thought he was ending a troublesome era of controversial debate.