Is it ending fetal life inside of the mother as opposed to ending fetal life outside of the mother? … IMPORTANT The Court sees it as more than a of “matter inches” Kennedy assumes the trauma of abortion is magnified in the partial birth abortion context very paternalistic…classic instance of patriarchy stands in the face of established notions of female autonomy the idea is the construct of a woman who was a fragile, irrational, and was prone to make bad decisions and as a consequence of this construction, law has to step in and protect fetal life and also women from themselves not unconstitutional on its face, but may be constitutional as applied the basic idea is an as-applied challenge would provide specific medical facts asserting the need for a medical challenge the argument would be that a partial-birth abortion would be unconstitutional as-applied to her how would an as-applied challenge work in practice? Not likely for a to find one doctor to step away from his practice in order to further her cause It would be impracticable to achieve this through using a class of women as well Also, you may get different outcomes due to the inconsistencies across jurisdictions this doesn’t seem to be much of a viable solution …so, In sum, it seems as though this is an encroachment on the pro-choice movement The opinion essentially cuts off one form of abortion Silver lining… Partial birth abortions take place in a very narrow context and only they are criminalized The majority of abortions protected by the right remain free from Roe encroachment The scope of the abortion right will not be resolved by the Court, but by the legislative process FAMILY AND OTHER INTERESTS “PRIVACY” The modern substantive due process decisions examined above Griswold, Eisenstadt, Roe, – and so on have all involved the freedom to decide to bear or beget a child.” But – “whether modern substantive due process is not so limited.
Is it ending fetal life inside of the mother as opposed to ending fetal life outside of the mother? … IMPORTANT The Court sees it as more than a “matter of inches” Kennedy assumes the trauma of abortion is magnified in the partial birth abortion context very paternalistic…classic instance of patriarchy stands in the face of established notions of female autonomy the idea is the construct of a woman who was a fragile, irrational, and was prone to make bad decisions and as a consequence of this construction, law has to step in and protect fetal life and also women from themselves not unconstitutional on its face, but may be constitutional as applied the basic idea is an as-applied challenge would provide specific medical facts asserting the need for a medical challenge the argument would be that a partial-birth abortion would be unconstitutional as-applied to her how would an as-applied challenge work in practice? Not likely for a to find one doctor to step away from his practice in order to further her cause It would be impracticable to achieve this through using a class of women as well Also, you may get different outcomes due to the inconsistencies across jurisdictions …so, this doesn’t seem to be much of a viable solution In sum, it seems as though this is an encroachment on the pro-choice movement The opinion essentially cuts off one form of abortion Silver lining… Partial birth abortions take place in a very narrow context and only they are criminalized The majority of abortions protected by the Roe right remain free from encroachment The scope of the abortion right will not be resolved by the Court, but by the legislative process FAMILY AND OTHER “PRIVACY” INTERESTS The modern substantive due process decisions examined above – Griswold, Eisenstadt, Roe, and so on – have all involved the freedom to decide “whether to bear or beget a child.” But modern substantive due process is not so limited.