Right on all counts. One would have see whether "viability" means "third trimester," as in Roe, though; and I don't think we know that. One reason to think that it might not be is that Roe's trimester division was based on the state of medical knowledge in 1973, and (one would expect a state proposing restrictions that cut earlier to argue) new medical advances have pushed viability back before the third trimester. That argument would probably find a sympathetic ear, or at least ten of them, on the new Court. (The Roe opinion's dependence in part on the state of medical knowledge at a time is one of its many flaws.) The issue, however, is as you say, sort of moot now. We can just hope that they'll content themselves with finding all burdens to be due and not getting rid of the fundamental right
--- Yoshie Furuhashi <critical.montages at gmail.com> wrote:
> On 3/9/07, andie nachgeborenen
> <andie_nachgeborenen at yahoo.com> wrote:
> > 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 has been replaced by Casey's "undue burden"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.
>
> Casey does say, though, "Adoption of the undue
> burden standard does
> not disturb Roe's holding that regardless of whether
> exceptions are
> made for particular circumstances, a State may not
> prohibit any woman
> from making the ultimate decision to terminate her
> pregnancy before
> viability" (Planned Parenthood of Southeastern Pa.
> v. Casey (91-744),
> 505 U.S. 833 (1992),
>
<http://www.law.cornell.edu/supct/html/91-744.ZS.html>),
> so the
> concept of viability survives in law, though reality
> is that many
> burdens have been judged to not to be undue and the
> post-O'Connor
> court is likely to be more willing to allow states
> to impose more
> burdens.
>
> The trimester division survives in practice, too, in
> a negative way:
> women, especially young women, who may not realize
> or are in denial
> about their pregnancy beyond the first trimester end
> up having even
> more trouble finding abortion providers than other
> women. Whenever we
> have discussion about abortion, someone raises the
> specter or a woman
> willfully having an abortion very, very late in
> pregnancy. The
> reality is, however, most women who decide to have
> abortion do so as
> soon as their financial and other circumstances
> allow (early abortions
> are easier and cheaper), and few providers actually
> perform abortions
> after the first trimester, to the detriment of most
> vulnerable and
> resourceless women.
>
> Getting back to the poll that Doug posted, the
> struggle is really over
> the hearts and minds of former liberals, since it is
> their move to the
> center, not former conservatives' move to the center
> (which is
> actually welcome), that is the main problem, and the
> main struggle
> will be at the state level.
> --
> Yoshie
> <http://montages.blogspot.com/>
> <http://mrzine.org>
> <http://monthlyreview.org/>
> ___________________________________
>
http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
>
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