Arc of Reproductive Rights Jurisprudence

Key Questions:


ACLU of Ark. v. Griffin () written 2023-0x-yy (Need everything) (not assigned in GVPT432)
Alliance for Hippocratic Medicine v. FDA () written 2023-0x-yy (Need everything) (not assigned in GVPT432)
2023-08-16: Fifth Circuit Court of Appeals decision eliminating access to mifepristone via telemedicine and mail delivery. Ho concur in part, dissent in part at page 64. Three dozen pages explainging why the plaintiffs have standing. 2023-04-21: Supreme Court "stayed [District Court decision] pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought." 2023-04-06: United States District Court for the Northern District of Texas Amarillo Division issued an opinion.
National injunction of the sale of mifepristone beginning on 2023-04-14.
2023-04-07: United States District Court for the Eastern District of Washington issued an opinion ordering the federal government to keep the drug available in 17 states plus the District of Columbia.
See Mifepristone and the rule of law by Adam Unikowsky.
See Michael C. Dorf's article on the ruling.
Dobbs v. Jackson Health (2022)
The Constitution does not confer a right to abortion;
Roe and Casey are overruled; and
the authority to regulate abortion is returned to the people and their elected representatives.
rational-basis review is the appropriate standard ... if state abortion regulations undergo constitutional challenge
Right of privacy discarded thereby endangering Griswold, Eisenstadt, Lawrence, and Obergefell despite repeated disclaimers.
Planned Parenthood v. Casey (1992)
... the state’s compelling interest in protecting the life of an unborn child means that it can ban an abortion of a viable fetus under any circumstances except when the health of the mother is at risk.
Overturns Roe in effect ... replaces trimester system with viability split.
... laws restricting abortion should be evaluated under an undue burden standard
Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.
(a) An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) ... the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion.
(c) ... the State may enact regulations to further the health or safety of a woman seeking an abortion.
(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding.
(e) “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Roe v. Wade (1973)
Texas statute invalidated by Overbreadth
In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.
These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, are included in this guarantee of personal privacy.
This right of privacy, ..., is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
Trimester system.
Carey v. Population Services Int'l (1977) written 2023-0x-yy (Need everything) (not assigned in GVPT432)
Eisenstadt v. Baird (1972) written 2023-0x-yy (Need everything) (not assigned in GVPT432)
Griswold v. Connecticut (1965)
A right to privacy can be inferred from several amendments [1st, 3rd, 4th, 5th, 9th, and 14th] in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal.
Poe v. Ullman (1961)