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"GRIEVOUSLY AND EGREGIOUSLY WRONG": AMERICAN ABORTION JURISPRUDENCE
In Casey, the plurality explicitly said so multiple times, finding that before the unborn child reaches viability, the States interests are not strong enough to support a prohibition of abortion4 and that a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy...
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Published in: | Texas review of law & politics 2021-10, Vol.26 (1), p.1-54 |
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Main Authors: | , |
Format: | Article |
Language: | English |
Subjects: | |
Online Access: | Get full text |
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Summary: | In Casey, the plurality explicitly said so multiple times, finding that before the unborn child reaches viability, the States interests are not strong enough to support a prohibition of abortion4 and that a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.5 A prohibition on abortion at fifteen weeks is, categorically, a pre-viability prohibition on abortion that takes the ultimate choice of whether or not to have an abortion away from the mother. Because the answer is so clear under Casey, the Court cannot answer this question without directly confronting the Casey line of precedent. Thirty states presumptively banned abortion, granting exceptions only when the mother's life was at risk; another sixteen states presumptively prohibited abortion but included additional exceptions, such as for when the pregnancy was the result of rape or incest, when the health of the mother was at risk, or when the child likely had a physical or mental disability.10 Just four states broadly permitted abortion on demand, but even these jurisdictions placed limits on abortions performed later in the pregnancy.11 Without reliance on any factfinding from the trial court below (for there was none), the Supreme Court struck down these fifty state regulatory regimes in Roe, installing a highly permissive framework in their stead. The procedurally atypical case arose in Texas and was filed by three parties, including "Jane Roe," a young woman seeking an abortion, on behalf of herself and all those similarly situated.12 The case was heard by a panel of three federal district court judges pursuant to the Three-Judge Court Act.13 There was no evidentiary hearing before the panel; rather, the panel decided the case solely as a matter of law.14 In a per curiam opinion that followed the reasoning of Justice Goldberg's concurrence in Griswold v. Connecticut,15 the panel unanimously held that the Texas law was unconstitutional under the Ninth Amendment,16 extending the right to privacy announced in Griswold from contraception to the context of abortion.17 But the panel declined to enjoin the enforcement of the Texas abortion law, instead invoking the doctrine of abstention, which counseled non-interference in state criminal procedures.18 By operation of the procedures of the Three-Judge Court Act, the plaintiffs appealed directly to the U.S. Supreme Court.19 After hearing oral arguments twice (due to Court vacancies arising durin |
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ISSN: | 1098-4577 1942-8618 |