CHILDREN AND THE LAW
Is a Fetus Child?
Roe v. Wade- Case dealing with abortion, interest of mother v. child, trimester framework.
-Points to remember: When a criminal statute bans abortion while disregarding other interests involved, violates due process of 14th amendment.
-(a) for the state 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
(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.(second trimester)
(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 it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
-under roe’s trimester framework, virtually no regulation was permitted during the first trimester. Regulations designed to protect the woman’s health were permitted during the second trimester until the point of viability. Finally, regulations designed to protect the potential life of the fetus were permitted only in the third trimester.
-refusal clauses-protect institutional and individual health care providers that wish to refuse to provide abortion services or to provide referrals or abortion counseling.
-almost all states have laws that allow health care providers, both public and private, to refuse to provide abortion services on the basis of their moral or religious objections. Also called conscientious objectors
Informed consent laws- majority of states have enacted a special type of restriction on abortion counseling, a content-based restriction that takes the form of an abortion-specific informed consent law-prior to undergoing any medical procedure, physicians must secure a patients informed consent by providing accurate, unbiased information about the risks, benefits, and alternatives to help the patient make an informed judgment about the proposed treatment.
Gonzales v. Carhart-Case dealing with types of abortions and imposing undue burden/obstacles on mothers.
-points to remember: -before viability, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy.
-it also may not impose upon this right an undue burden, which exists if a regulations purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
-on the other hand, regulations which do no more than create a structural mechanism by which the state, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the womans exercise of the right to choose.
-where it has a rational basis to act, and it does not impose an undue burden, the state may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.
-the state has an interest in ensuring so grave a choice is well informed.
Jefferson v. Griffin –case dealing with child at risk of death if birth given vaginally, parents didn’t want c-section
Points to remember- the viable unborn child had rights under the U.S. Constitution to the protection of the State through such statutes prohibiting the arbitrary termination of the life of an unborn fetus, the superior and juvenile courts found that the unborn child was entitled to their protection. Thus, the trial courts awarded the State temporary custody of the unborn child and ordered the mother to submit to the caesarian section as necessary to sustain the life of the child.
-the state has an interest in the life of this unborn, living human being.
-the child was facing almost certain death.
-courts have intervened typically only when the lives of third parties were jeopardized or when the patient was not competent to refuse care.
-a pregnant woman’s wishes may be overridden if she is not in good health/incompetent/unable to provide informed consent.
-**some courts have refused to do a balancing test and honor a competent woman’s treatment decision. Choice to refuse an invasive procedure like a c-section must be honored, even in circumstances where the choice may be harmful to her fetus.
-risk test or substantive due process(let the mother choose).
Planned Parenthood v. Casey- case dealing with whether or not a wife should have to notify spouse of decision to obtain an abortion
Points to remember: rejected Roe’s trimester framework and adopted an undue burden test for determining whether State regulations had the purpose or effect of placing substantial obstacles in the path of a woman seeking an abortion before viability.
-the spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortion a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle.
-spousal notification is an undue burden, and therefore invalid.
-the husband’s interest in the life of the child his wife is carrying does not permit the state to empower him with this troubling degree of authority over his wife.
-majority of states have enacted fetal homicide laws that impose dual criminal liability based on the injury or death of a child in utero during
n its face, the compulsory school attendance law unduly burdened the Free Exercise Clause. The parents educated their children at home in practical pursuits and prepared them to become functioning adults in their communities. The court held that accommodating the parents’ religious objections by forgoing one or two additional years of compulsory education would not impair the physical or mental health of the child, result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from societal welfare.
-enforcement of the states requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents religious beliefs.
-this case, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated. The record is to the contrary, and any reliance on that theory would find no support in the evidence. the Amish have introduced persuasive evidence undermining the arguments the state has advanced to support its claims in terms of the welfare of the child and society as a whole.
Student freedom of speech
Tinker- case dealing with students wearing black armbands in protest of the Vietnam war.
Points to remember: the wearing of armbands was entirely divorced from actually or potentially disruptive conduct by those that participated in it. Petitioners’ conduct was closely akin to pure speech which was entitled to comprehensive protection under the First Amendment, absent facts that might reasonably have led school officials to forecast substantial disruption of or material interference with school activities.
-it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
-undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble.
-our constitution says we must take this risk, and our history says that it is this sort of hazardous freedom- this kind of openness- that is the basis of our national strength and of the independence and vigor of americans