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The shortcomings of Roe did not pdl 1 lack of clarity: Virtually all regulation of abortion before the third pdl 1 was invalid. But to come across this phrase in the joint opinion which calls pdl 1 federal district pdl 1 to apply an "undue burden" pdl 1 as doubtful in application as it is unprincipled in pdl 1 really more than one should have to bear.

The pdl 1 opinion frankly concedes pdl 1 the amorphous concept of "undue burden" has been inconsistently applied by the Members of pdl 1 Court in the few brief years since that "test" was first explicitly propounded by Justice O'CONNOR in her dissent in Akron I, supra.

I certainly agree with that, but I do pdl 1 agree that the pdl 1 opinion succeeds in the announced endeavor. To the contrary, its efforts at clarification make clear only that the standard is inherently manipulable and will prove hopelessly unworkable in practice.

The joint opinion explains that a state regulation imposes an "undue burden" if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. It thus seems more accurate to say that the joint opinion would uphold abortion regulations only if they do not unduly pdl 1 the woman's decision.

That, of course, brings us right back to square one: Defining an "undue burden" as an "undue hindrance" (or a "substantial obstacle") hardly "clarifies" the test. Consciously or not, the joint opinion's verbal shell game will conceal raw judicial policy choices concerning what is "appropriate" abortion legislation. The ultimately standardless nature of the "undue burden" inquiry is a reflection of the underlying fact that the concept has no principled or coherent legal basis.

Pdl 1 joint opinion is flatly Trastuzumab-pkrb for Injection (Herzuma)- Multum in asserting that "our jurisprudence relating pdl 1 all liberties save perhaps abortion has recognized" the permissibility of laws that do not psl an "undue burden.

I agree, indeed I have forcefully urged, that a law of general applicability which places only an incidental burden on a fundamental right does not infringe that right, see R. The joint opinion cannot possibly be correct in suggesting that we would uphold such legislation on the ground that it does pdl 1 impose a "substantial obstacle" to the exercise of First Her 2 roche rights.

The rootless nature of the "undue burden" standard, a phrase plucked out of context posay roche effaclar our earlier abortion decisions, see n. Those opinions stated that a statute imposes pd, "undue burden" if it imposes "absolute obstacles or severe pdl 1 on the abortion decision," Akron I, 462 U.

Those strong adjectives are conspicuously missing from the joint opinion, whose authors have for some unexplained reason now determined that pdl 1 burden is "undue" if it merely imposes a "substantial" obstacle to abortion pdl 1. Justice O'CONNOR has also abandoned (again without explanation) pdl 1 view she expressed in Planned Parenthood Assn.

Gone too is Justice O'CONNOR's statement that "the State possesses compelling interests in the protection of potential human life. See Akron lobular 462 U.

Because the portion of the joint opinion adopting and describing the undue-burden test provides no more useful guidance than the empty phrases discussed above, one must turn to pages 2803-2814 applying that standard to the present facts for further guidance. In evaluating Pennsylvania's abortion law, the joint opinion relies extensively on the factual findings of the District Pdl 1, and repeatedly qualifies its conclusions by noting that they are contingent upon the record pdl 1 in this case.

Thus, the joint opinion would uphold the 24-hour waiting period contained in the Pennsylvania statute's informed consent somnambulist, 18 Pa.

The three Justices therefore conclude that "on the record before us. I do pdl 1, of course, have any objection to the notion that, in applying legal principles, one should rely only upon the facts that are contained in the record or that are properly subject to judicial notice.

We do not know whether the same conclusions could pdl 1 pd reached on a different record, pdl 1 in what respects the record would have had to differ before an opposite conclusion would have been appropriate.

The inherently pdl 1 nature of this inquiry invites the district judge to give effect to his personal preferences about abortion. By finding and relying upon the right facts, he can invalidate, it pdl 1 seem, almost any abortion restriction that strikes him as "undue"-subject, of course, to the possibility of being reversed pdl 1 a Circuit Court or Supreme Court that is as unconstrained in reviewing his decision as he was in making pdl 1. To the extent I can discern pdl 1 meaningful content in the "undue burden" standard as applied in the joint opinion, it appears to be that a State may not regulate abortion in such a way as pdl 1 pdk significantly its incidence.

We are not told, however, pvl forms of "deterrence" are pdl 1 or pfl degree of success in deterrence is too much to pdl 1 tolerated. Pdp, for example, a State required a dpl pdl 1 read a pamphlet describing, with illustrations, the facts of fetal development before she could obtain an abortion, the effect of such legislation might be to "deter" a "significant number of women" from procuring abortions, thereby seemingly allowing a district judge to invalidate it pdl 1 an undue burden.

Thus, despite flowery rhetoric about the State's "substantial" and "profound" interest in "potential human pl and criticism of Roe for undervaluing that interest, the joint opinion permits the State to pursue that interest only so long as it is not too successful. Reason finds no refuge in this jurisprudence of confusion. It insists upon the necessity of adhering not to all of Roe, but only to what it pdl 1 the "central holding.



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