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GLOSSARY OF TERMS


> Amicus curiae

> Caucus

> Certiorari

> Compelling interest

> Due process

> Equal protection

> Filibuster

> Freedom of Access to
   Clinic Entrances (FACE)
   Act

> Health Exception

> Intermediate scrutiny

> Judicial bypass

> Judicial review

> Litmus test

> Originalist

> Parental consent/notification

> Penumbra

> Plurality opinion

> Rational basis scrutiny

> Right to privacy

> Stare decisis

> "Strict Constructionist"

> Strict Scrutiny

> Targeted Regulation of
   Abortion Providers (TRAP)
   laws

> Undue Burden

Amicus Curiae

An interested individual or group that files a brief or participates in the oral argument of a particular case but that is not a litigant in that case; the phrase is Latin for "friend of the court." NAF and several other medical organizations with expertise in women's health care filed an amicus brief in the Stenberg v. Carhart (Carhart I) (2000) case on behalf of NAF member Dr. LeRoy Carhart.

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Caucus

A group of individuals with a unitfied goal or objective. For example, the Congressional Women's Caucus organizes around the promotion of women's issues.

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Certiorari

The acceptance for review of a case by a higher court. The United States Supreme Court and other state supreme courts cannot take every case that is brought to their attention. There are just too many cases for these high courts to accept them all. When a case is appealed to a higher court, the party appealing the case will file a petition for certiorari with the court. If the court accepts the case, it will issue a writ of certiorari.

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Compelling Interest

During judicial review, when strict scrutiny is applied, a law will be held constitutional if it furthers a compelling state interest. Two examples of compelling state interests that have been found are: (1) the government's interest in having a diverse student body at public institutions of higher education and (2) the government's interest in having campaign finance regulation to prevent the appearance of governmental corruption.

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Due Process

The Due Process Clause of the 14th Amendment to the Constitution guarantees that no state shall deprive any person of life, liberty, or property, without due process of law. There are two components of this due process protection: (1) substantive due process and (2) procedural due process. Substantive due process is the protection afforded to specific rights like freedom of religion, freedom of speech, and the right to privacy. Substantive due process is one of the legal foundations for Supreme Court decisions like Roe v. Wade. Procedural due process is the guarantee that when substantive due process rights are abridged there will be a system or procedure in place in order to make sure that such rights are not being affected in an arbitrary manner. For example, procedural due process guarantees that someone cannot be deprived of their right to hold a political protest in the middle of the street without the a fair hearing in a court of law.

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Equal Protection

The Equal Protection Clause of the 14th Amendment to the Constitution guarantees equal protection under the law for all citizens. The Equal Protection Clause deals with the equality in application of laws, not the equality of individuals. For example, a law that said that only white men could run for President would violate the Equal Protection Clause because it discriminates against both people of color and women.

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Filibuster

Any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.

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Freedom of Access to Clinic Entrances (FACE) Act

The FACE Act makes it illegal to intimidate, interfere with, or injure someone who provides, or is attempting to obtain, reproductive health care services. This includes not only clinic employees and patients, but those accompanying or assisting patients, like friends or clinic escorts. FACE also punishes those who damage or destroy the clinics themselves. FACE was enacted in 1994 with the help of then-Representative Charles Schumer (D-NY). FACE has been upheld by each of the eight federal district courts that have heard a FACE case; the Supreme Court has chosen not to review any of these cases, essentially reaffirming the constitutionality of FACE.

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Health Exception

An exemption from an abortion restriction that allows a woman to obtain an abortion if her health would be jeopardized by continuing her pregnancy. The Supreme Court has held since Roe v. Wade (1973) that a health exception that includes physical as well as psychological health is necessary to make any abortion restriction constitutional, because the woman's health interest overrides any compelling state interest in regulating abortion.

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Intermediate Scrutiny

To pass intermediate scrutiny, a law must be substantially related to some important state interest. A law will face intermediate scrutiny by the courts when it makes use of a gender classification. For example, a law stating that women cannot wear shorts while men can shorts would face intermediate scrutiny. Such a law would be struck down because it is not substantially related to a legitimate government interest.

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Judicial Bypass

The process by which a minor who is seeking an abortion in a state with mandatory parental involvement laws can ask a judge to set aside those requirements. Through the procedure, a court can waive the state's parental notification or consent requirement if it determines that the minor is sufficiently mature to make her decision without parental involvement, or that having an abortion is in the minor's best interests. The Supreme Court has held since 1979 (Bellotti v. Baird) that state parental involvement statutes must provide for judicial bypass proceedings for minors seeking abortions; it later clarified that states must also conduct those proceedings confidentially and quickly. In reality, many bypass proceedings fall woefully short of this mandate: one study of Pennsylvania's court system found that at least 40 of the state's 60 judicial districts were totally unprepared to handle judicial bypass inquiries. Moreover, anti-choice judges routinely deny young women's requests for the waivers, even when the minor is clearly mature.

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Judicial Review

The process of a court examining a law to determine whether it violates the protections of the Constitution. In its examination, a court will apply the appropriate level of scrutiny: (1) strict scrutiny, (2) intermediate scrutiny, or (3) rational basis scrutiny.

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Litmus Test

The idea that a judicial nominee must agree with the President's views on a single issue. Candidates for executive office are often asked whether they will apply an "abortion litmus test" to their judicial selection proceedings - meaning that they would only nominate for a judgeship an individual whose attitude about a woman's right to choose matched their own.

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Originalist

The term originalist describes the political philosophy of a jurist who believes laws should only have their original meaning, or their meaning when they were written. The originalist viewpoint is directly opposed to the idea of a "living constitution," or the idea that the Constitution should be interpreted to grow and flex as time goes forward. Originalists do not support the right to privacy because the constitution does not explicitly declare such a right. Supreme Court Justices Antonin Scalia and Clarence Thomas are originalists. Both have said that they believe Roe v. Wade was incorrectly decided.

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Parental Consent/Notification

The requirement in some states that minors must involve their parents in their abortion decision. Mandatory parental involvement statutes can unnecessarily endanger minors seeking abortion services - either by forcing them to tell an unsupportive and potentially abusive parent about their pregnancy, or driving them to seek out an illegal and unsafe provider. In fact, most teens decide on their own to involve at least one parent in their abortion decision - and the ones that don't have a good reason for doing so. According to the Guttmacher Institute, 3 in 10 minors who obtained an abortion without telling a parent did so because they feared family violence.

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Penumbra

The idea that there exists a body of fundamental rights that are not explicitly outlined in the Constitution; notably cited by the Supreme Court in Griswold v. Connecticut (1965) as the foundation of the constitutional right to privacy. In Roe v. Wade (1973), Justice Blackmun specified that the right to personal privacy was derived from the 14th Amendment's "concept of personal liberty and restrictions upon state action."

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Plurality Opinion

The controlling opinion when no majority opinion exists; the majority of the majority. For example, in a nine member court, five justices believe that the plaintiff should win a given case, but only three of them agree on the reasoning behind that decision. The written opinion and the underlying reasoning of those three justices is the controlling decision of the entire court. Planned Parenthood v. Casey was decided in a 5-4 vote with a three-justice plurality opinion written by Justice O'Connor as the decision of the Court.

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Rational Basis Scrutiny

This is the lowest level of judicial scrutiny, and most governmental acts that face it will be found constitutional. To pass rational basis scrutiny, a law must be rationally related to a legitimate state interest. All laws that face judicial review but do not infringe on a fundamental constitutional right or make a classification based on gender will face rational basis scrutiny. For example, a law saying that dogs must be licensed would face rational basis scrutiny. Such a law would be constitutional because it furthers legitimate state interests like the desire to know who owns a particular dog in case of injury caused by that dog.

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Right to Privacy

The right to make decisions about one's body and private life without interference from the government. This right is not given explicitly in the Constitution or the Bill of Rights but has been found by the Supreme Court to be implied by a number of those rights in the Constitution, such as the freedom of speech, freedom of religion, freedom from unreasonable searches and seizures, and the due process guarantees. The right to privacy is the basis for a woman's right to choose as stated in Roe v. Wade.

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Stare Decisis

The principle that courts must abide by prior judicial decisions when the same points arise in litigation; the phrase is Latin for "to stand by things decided." This adherence to judicial precedence ensures stability and continuity in the judicial system and judges are largely reluctant to overturn decisions of law.

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"Strict Constructionist"

Jurist who interprets the Constitution literally and rejects the idea of implied rights, including the right to privacy. Judges who follow strict constructionism are generally assumed to be opposed to a woman's right to choose. During the 2000 presidential campaign, then-Governor Bush (R) repeatedly stated he would appoint only "strict constructionists" to the Supreme Court. Supreme Court Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas are often described as "strict constructionists."

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Strict Scrutiny

The highest level of judicial review that can be applied to a statute, the "strict scrutiny" standard says that laws that place restrictions on freedoms guaranteed by the Constitution (such as freedom of speech) must be narrowly tailored and necessary to serve a compelling state interest. The Supreme Court's landmark Roe v. Wade (1973) decision applied the "strict scrutiny" standard to Texas' criminal abortion statutes and declared that the constitutional right to privacy encompassed the right of women to make decisions about their pregnancy.

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Targeted Regulation of Abortion Providers (TRAP) Laws

Laws that impose medically unnecessary regulations on reproductive health care providers and facilities. The ultimate goal of these arbitrary regulations is to make the cost of operating a clinic so high that it becomes impossible for facilities to continue to provide abortion services. TRAP regulations can be as trivial as mandating the size of janitorial closets or doorways, or as outrageous as requiring the clinic to allow the state department of health access to confidential patient records. The Supreme Court recently refused to hear the appeal of a South Carolina clinic in Greenville Women's Clinic v. South Carolina Department of Health and Environmental Control, in which the clinic had sued to overturn the state's burdensome TRAP regulations; see NAF's amicus curiae brief in this case (PDF file, 191K).

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Undue Burden

The current test applied to see whether state regulations on abortion are constitutional, the "undue burden" analysis determines that abortion restrictions are unconstitutional when they place a "substantial obstacle" in the path of a woman seeking an abortion. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court ruled that laws that infringed on a woman's right to an abortion before fetal viability were no longer subject to the highest level of judicial review (the strict scrutiny standard applied in Roe v. Wade). Instead, the Supreme Court instructed courts across the country to use the less rigorous and more subjective "undue burden" standard. The application of the "undue burden" standard allowed anti-choice state legislatures to employ a wide array of measures to restrict abortion access, including mandatory waiting periods and biased "informed consent" laws.

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