1. Ap u.s. government & politics
Tuesday, April 17, 2018

2. Warm-Up/HW Check
The 1973 Roe v. Wade decision that upheld a woman’s right to secure an abortion was based on the right to:
a. Privacy implied in the Bill of Rights.
b. Equality guaranteed by the Fourteenth and Fifteenth Amendments.
c. Due process of law enumerated in the Fifth and Sixth Amendments.
d. Adequate medical care implied in the Preamble to the Constitution.
e. Life, liberty and the pursuit of happiness enumerated in the Declaration of Independence.

3. Substantive due process, privacy, and abortion

4. “Substantive Due Process”
What is “process”?
What is “substance”?
What might “substantive due process mean”?
Linguistically it is nonsensical
But the Court has nevertheless identified a substantive component of the Due Process Clause
Procedural Due Process – “Notice and Opportunity to Be Heard”
Traditional understanding of Due Process
Examples: Miranda warnings; Right to an Attorney
Substantive Due Process – Functionally, the Court has used this concept to identify un-enumerated fundamental rights
These rights generally cannot be taken away by the government
(But remember there are always exceptions—especially in extreme circumstances)

5. The Right to Privacy Griswold v. Connecticut (1965)
Connecticut law banned any use of contraceptives
Griswold gave information, advice, and instruction on the use of contraceptives to married couples
Court strikes down the law, as a violation of the “Right to Privacy”
First time this has been identified as a fundamental right
The justices give several justifications for the decision: the 9th Amendment, “Penumbras and Emanations” of express rights, and Substantive Due Process
Substantive Due Process turns out to be the one that sticks

6. Roe v. Wade (1973)
Texas law outlawed abortion except in cases where the mother’s life was threatened
The Court strikes the law down, saying that it infringes on the Right to Privacy
What are the state’s interests in banning abortions?
1) Protecting the life/potential life of the fetus
2) Protecting the health of the mother
What test will the Court employ to determine whether these interests outweigh a woman’s Right to Privacy?
The Court says that both of these interests are legitimate, that they grow as the pregnancy progresses, and that at some point they become COMPELLING
Adopts a trimester approach:
1st Trimester – No regulation allowed
2nd Trimester – Regulation permitted to protect the life of the mother
3rd Trimester – Regulation permitted to protect the life of the fetus

7. The Impact of Roe Important For: Effects: Backlash Effects:
Evolution of Constitutional Theory (towards Living Constitution)
Development of National Politics
Effects:
Increased the number of abortions
May have helped to legitimize abortion in the public consciousness
Backlash Effects:
Mobilized and motivated the Right to Life movement
De-mobilized supporters of abortion rights

8. Restrictions on Abortion Rights
Maher v. Roe (1977)
Challenge to a state regulation granting Medicaid funds for childbirth but not for abortion
The regulation is upheld; abortion is not an absolute right; restriction on abortion must not place an “undue burden” on the right
Restrictions struck down under the “undue burden” test:
Requirement that 2nd semester abortions be performed in hospitals
Informed consent that amounts to persuasion against abortion
24-hour waiting period
Spousal consent
Parental notification/consent for minors
Restrictions upheld under the “undue burden” test:
Ban on state employees performing abortions
Ban on use of public facilities for abortions

9. Planned Parenthood of PA v. Casey (1993)
Challenges to several restrictions on abortion under Pennsylvania state law
Court further defines “undue burden” as “substantial obstacle”
Abortion regulations must not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking to exercise her right.
Using this test, the Court upholds several of PA’s restrictions, including:
24-hour waiting period
Informed Consent including information about alternatives
Holds that Roe undervalued the state’s interest in protecting unborn life
Strikes down Roe’s trimester approach – the line for the state’s interest in protecting the life of the fetus is NOT to be drawn at viability
In recent years, a number of states have outlawed abortions after 20 weeks

10. Partial Birth Abortion
Stenberg v. Carhart (2000)
30 states had passed bans on partial birth abortion
Nebraska’s statute is Struck Down, for two reasons:
1) No health of the mother exception
2) Description of the procedure is too general
Gonzalez v. Carhart (2007)
Federal ban on partial birth abortion is upheld
Congress fixed the defects in the Nebraska statute

11. Student Supreme Court: “Undue Burden?”
A Texas law (similar to laws in several other states) places strict requirements on abortion providers:
Abortion providers must have admitting privileges at local hospitals
Abortion clinics must meet all of the requirements of outpatient surgical centers
The state’s rationale is ensuring that abortions are as safe as possible
The effect of this law has been the closure of 19 of 40 abortion clinics in the state
How will your Supreme Court decide this case?
Whole Women’s Health v. Hellerstedt (2016)

12. The Right to Bear Arms

13. Second Amendment to the U.S. Constitution
“A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
A central controversy over the 2nd Amendment is whether people have a right to bear arms as individuals, rather than only as part of a militia.

14. Stevens v. United States (6th Cir.; 1971)
The court ruled that there was no express right of an individual to keep and bear arms
In every other case, except one, the courts held that the amendment refers to the right to keep and bear arms only in connection with a state militia
U.S. v. Emerson (1999) – U.S. District Court case
A district court went against all federal court precedent
Claimed the 2nd Amendment guaranteed the individual’s right to keep and bear arms

15. A Shift in Interpretation: The Heller Decision
District of Columbia v. Heller (2008) – SUPREME COURT CASE
The Supreme Court picked this case to evaluate a law in DC that banned handgun possession.
Law requires residents to keep lawfully owned firearms unloaded and disassembled.
The Supreme Court held that the 2nd Amendment protects an individual’s right to possess a firearm unconnected with service in the militia.

16. Incorporation of the Second Amendment
The 2nd Amendment remained unincorporated until 2010
McDonald v. Chicago (2010)
The City of Chicago banned almost all handgun possession by private individuals.
Mr. McDonald argued that this left him vulnerable to criminals.
The Supreme Court held that the 14th Amendment incorporates the 2nd Amendment right.

17. Homework
Textbook, p

18. Current events discussion
7 Mintues