Roe's trimester framework is no longer good law. It has been replaced by Casey's "undue burden" standard. Any restriction in any trimester is unconstitutional if imposes an undue burden on the woman, not if not -- in any trimester.
An "undue" burden used be one that, as a matter of law, bothered Justice O'Connor. Now that she's left the Court, it is unclear whether any burden will be undue, or whether the fundamental right to reproductive choice will be overturned.
That may well happen, given the composition and extreme activist radicalism of the current Court and the fact that Justice Kennedy, who has been a long-time abortion skeptic, has now moved into Justice O'Connor's place as the swing vote.
Although I think that Roe was probably ill considered and legally baseless at the time -- I mean with respect to finding a fundamental right, not the trimester framework, which is incidental and has been discarded -- it is now deeply entrenched as precedent by Webster and Casey, which underlined the Court's commitment to the fundamental right, and overturning it would be shocking.
But the Court has been shock-proof lately, see e.g., Bush v. Gore or Kelo (the eminent domain case). The best hope is that the Court will take a cue from the repudiation of Bushism in the last elections and content themselves with merely not finding any burdens imposed by the states to be undue.
Pray for the health of one old Illinois Republican . . . a lot rests on Justice Stevens.
--- Yoshie Furuhashi <critical.montages at gmail.com> wrote:
> On 3/9/07, joanna <123hop at comcast.net> wrote:
> > >If Joanna is talking about the case of women who
> are mentally ill,
> > >rather than religious, well, that's a matter of
> disability rights.
> > >Mentally and physically disabled women have often
> been denied sexual
> > >rights and freedoms as well as reproductive
> rights and freedoms. What
> > >do leftists think about that discrimination
> against the disabled?
> > >
> > The issue that I'm raising is that sometime after
> conception and before
> > full term, a foetus is viable outside the mother's
> body. Given that this
> > is the case, does a woman have the right to end a
> life that could
> > continue outside her body? Or is that possibly a
> space in which society
> > has a voice.
>
> The current constitutional standard that is the
> basic framework of
> legal thinking about abortion, Roe v. Wade, is
> already in part based
> on the concept of viability:
>
> 3. State criminal abortion laws, like those
> involved here,
> that except from criminality only a life-saving
> procedure
> on the mother's behalf without regard to the
> stage of her
> pregnancy and other interests involved violate
> the Due
> Process Clause of the Fourteenth Amendment,
> which
> protects against state action the right to
> privacy, including
> a woman's qualified right to terminate her
> pregnancy.
> Though the State cannot override that right, it
> has legitimate
> interests in protecting both the pregnant
> woman's health
> and the potentiality of human life, each of
> which interests
> grows and reaches a "compelling" point at
> various stages
> of the woman's approach to term. Pp. 147-164.
>
> (a) For the stage prior to approximately the
> end of
> the first trimester, the abortion decision and
> its effectuation
> must be left to the medical judgment of the
> pregnant woman's
> attending physician. Pp. 163, 164.
>
> (b) For the stage subsequent to approximately
> the end of
> the first trimester, the State, in promoting
> its interest in
> the health of the mother, may, if it chooses,
> regulate
> the abortion procedure in ways that are
> reasonably
> related to maternal health. Pp. 163, 164.
>
> (c) For the stage 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 necessary, in appropriate
> medical judgment, for the preservation of the
> life
> or health of the mother. Pp. 163-164; 164-165.
> (Roe v. Wade,
>
<http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZS.html>)
>
> So the starting point of our discussion should be
> the recognition that
> the right to abortion guaranteed by the constitution
> is a right
> limited to the first trimester and that availability
> of abortion in
> general and abortion after the first trimester in
> particular has
> become increasingly scarce, due to both more and
> more legal
> restrictions placed on abortion and fewer medical
> practitioners
> willing to perform abortion.
>
> The questions leftists need to ask themselves are
> _whether_ they are
> content with the reality of more and more
> restrictions on this already
> limited constitutional right and worsening scarcity
> of abortion
> providers; and, _if they are not_, what they think
> they can do to make
> it easier for women to obtain abortion in the
> current political
> climate, where both pro-choice and anti-abortion
> Americans have moved
> to the center, which, as Wojtek noted, may make it
> easier for states
> to put even more restrictions on the right to
> abortion. We really
> need reality-based discussion.
> --
> Yoshie
> <http://montages.blogspot.com/>
> <http://mrzine.org>
> <http://monthlyreview.org/>
> ___________________________________
>
http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
>
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