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Description
This a Constitutional law essay that needs revision and correction.It should be handled with a lawyer/or law professor familar with IRAC format and issues spotting.He/ she should ensure that all the required issues were clearly spotted and dealt with using IRAC format
THE QUESTION:
Suppose California adopted a statute requiring a married woman, presently living with her husband, who has conceived a child by him to notify him of her intention to obtain an abortion and to provide him with an opportunity to consult with her concerning abortion procedures. The statute further provides that the physician performing the abortion may rely on the written statement of the woman either that (1) she is not living with her husband or has not conceived the child with him, or that (2) she has provided her husband with notice and an opportunity to consult.
1. Is the statute constitutional?
2. Does a physician who regularly performs abortions have standing to challenge the statute?
THE ESSAY:
The State of California has recently passed a statute that requires all married women who reside with their husband and conceive a child with him to notify him of her intent to obtain an abortion and to provide him an opportunity to consult with her concerning this decision. Further, the statute provides that the physician performing the abortion to rely on a written statement from the woman that either she is not living with her husband, had not conceived the child with him or has provided her husband with the required notice and opportunity to consult. The issues involved with this statute is whether the law would be held constitutional under the current standing of the law. The question of constitutionality applies to both the notice/consult requirement and whether a physician who performs abortions has constitutional standing to challenge the constitutionality of the statute.
The question of abortion follows under a fundamental right analysis of constitutional law. According to the law, certain fundamental rights are protected under the Constitution. If these rights are denied to everyone, it is a substantive due process issue. If they are denied to some individuals but not others, it is an equal protection issue. The applicable standard of review for either issue is strict scrutiny, thus requiring any government action affecting the fundamental right to be necessary to protect a compelling governmental interest.
One fundamental right is the right of privacy, which includes such rights as marriage, sexual relations, abortion and childrearing. Any laws or regulations affecting these rights are reviewed using a strict scrutiny standard. However, the right for a woman to have an abortion without interference from the state creates a special situation because normal strict scrutiny cannot be applied due to the fact that the state has two compelling and competing interests: protecting the woman’s health and protecting the fetus that may become a child. To solve this contradiction, the Supreme Court has adopted two basic rules: a pre-viability rule and a post-viability rule.
According to the pre-viability rule, there can be no undue burdens on a woman’s right to have an abortion. Viability is defined as a realistic possibility that the fetus could survive outside the womb. Before the time of viability, the Court has held that the state may adopt a regulation protecting the mother’s health and the life of the fetus if the regulation does not place an “undue burden” on or substantial obstacle to the woman’s right to obtain an abortion.
Under the case law that has been decided utilizing the pre-viability rule, the courts have found that requiring a doctor to give the woman relevant information to make an informed consent, requiring a 24-hour waiting period, requiring parental consent or parental notice for minors and requiring that abortions be performed only by licensed physicians are all not considered to be undue burdens. However, rules that require a woman to notify their spouse about an abortion or that bar all partial birth abortions are considered to be an undue burden and thus unconstitutional.
However, under the post-viability rule, the state may limit or prohibit abortions unless a woman’s health is threatened. In other words, once the fetus becomes viable, the state’s interest in the fetus can override the woman’s right to have an abortion. Yet, the Courts are clear that the state cannot prohibit the woman from having an abortion if it is necessary to protect the woman’s health or safety.
In the case at hand, if the woman is seeking to obtain an abortion prior to the time of viability, then clearly the requirement that she both give her spouse notice and time to consult is unconstitutional according to the decisions of the Supreme Court. However, if the woman is seeking to obtain an abortion after the time of viability, then such a statute will more likely be constitutional, although a claim of unfair and differential treatment of married women could be made. However, as this law is most likely to effect pre-viability abortions, it is more likely than not unconstitutional.
In terms of whether or not a physician who regularly performs abortions would have standing to challenge the constitutionality of the statute, one must first determine whether the physician has a concrete stake in the outcome of the case. In order to have standing, one must have an injury, causation, and redressability. In order to have an injury, the plaintiff must show that he or she has been or will be directly and personally injured by the allegedly unlawful government action which affects his or her rights under the Constitution or federal law. There must also be a casual connection between the injury and the conduct complained of. Finally, in order to show redressability, a decision in the litigant’s favor must be capable of eliminating his or her grievance.
If one is attempting to assert the rights of others, such as the rights of a woman wanting to obtain an abortion, one will rarely be found to have standing. Generally, one cannot assert the constitutional rights of others to obtain standing.
Thus, in the case at hand, the physician who regularly performs abortions will most likely not have standing to challenge the statute as being unconstitutional. The grounds for the statute being unconstitutional is that it violates a woman’s fundamental right of privacy. However, this right of an abortion only applies to the person having that right: namely a female seeking an abortion. Unless the physician is both female and seeking an abortion, they do not have the constitutional right being challenged. Thus, they do not have proper standing.
Bibliography:
Goodpaster, Gary S., and peter Tenen. Constitutional Law. Santa Monica: Casenotes Publishing Company, 2000.
Gunther, Gerald. Constitutional Law. 11th ed. Mineola, N. Foundation press, 1995.
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