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Constitutional Law II
Elon University School of Law
Gaylord, Scott W.

I. Substantial Due Process and Privacy
· 14th Amendment: “No state shall … deprive any person of life, liberty, or property, without due process of law”
· Concept that certain rights are so fundamental to our traditions of justice that the government cannot abridge those rights regardless of the procedural protections that the government implements
· How does the Court determine which rights are fundamental?
o Enumerated rights
o Unenumerated rights — if not enumerated, what is basis for such rights?
§ Natural law — fundamental, inalienable rights that cannot be abridged; embodied in, but not dependent on, Constitution
§ Legal positivism — rights fundamental by virtue of being grounded in history and founding of the country and Constitution (originalism) or ongoing development of country and enlightened views of rights (evolving view of Constitution)
A. Roe v. Wade
· Court locates the right of privacy in the “liberty” clause of the 14th Amendment.
· Fundamental right so strict scrutiny applies.
· Court specifies a trimester scheme that reflects the States’ varying interests in the mother and fetus during gestation:
o First trimester—State has no compelling interest in the health of the mother or in the potential life of the fetus, so abortion decision left to woman and her physician.
o Second trimester—State interest in maternal health is a compelling interest and may support some types of regulation related to that interest.
o Third trimester—State interests in maternal health of mother and in potential life are compelling interests supporting regulation and possibly prohibition of abortions (under certain circumstances).
B. Planned Parenthood v. Casey
· Reaffirms “essential holding” of Roe.
o upheld the constitutional right to have an abortion but lowered the standard for analyzing restrictions of that right
o Viability of fetus is critical point for analysis.
o No prohibition before viability; prohibition after viability except for life or health exception.
· Rejects strict scrutiny.
o Possibly replaced with undue burden test plus rational basis.
§ “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.”
· Test: Whether government regulation places an “undue burden” on a woman’s right to an abortion.
o Something that “hinders” or “interferes with” rather than “informs,” “encourages,” or “influences” a woman’s choice.
o “[A] finding of an undue burden is a short-hand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
· Trimester distinction overruled—viability stays as the dividing line between when State can and cannot prohibit abortion.
· What is the nature of the underlying fundamental right?
o What does privacy mean?
o Bodily integrity: The right to control one’s own body as a core liberty value.
o Decisional autonomy: Private, personal, or intimate matters are best left to individuals, not political majorities.

Other Effects of Casey on Roe’s Progeny



Spousal notification

Unconstitutional Danforth


Hospitalization requirements

Unconstitutional Akron

Second doctor requirement

Unconstitutional Doe

Informed consent warnings

Unconstitutional Akron


Waiting periods

Unconstitutional Akron


Detailed record-keeping requirement

Unconstitutional Thornburgh


Parental notice/consent requirement for minors

Possibly constitutional if there is judicial bypass Bellotti

Constitutional if there is judicial bypass procedure (maturity or best interest)

· Test for pre-viability regulations: Does the regulation impose an undue burden (i.e., a substantial obstacle)

evidence that person wanted treatment terminated before it is cut off.
B. Washington v. Glucksberg
· Court upheld Washington law prohibited aiding/abetting suicide
o Court split 5-4 in terms of reasoning
· Majority
o Protect rights only if there is a clear tradition.
§ The tradition is preventing physician assisted suicide.
§ Because there is no fundamental right, law is subject only to rational basis.
o State has legitimate, if not important, interests in precluding physician-assisted suicide
· Concurrence
o Suggest that an “as applied” challenge might be successful even though the facial challenge fails.
o Whereas Glucksberg was a challenge by terminally ill patients, a challenge by those for whom no pain medication works might get a different result.
C. Vacco v. Quill
· Court said assisted suicide is not the same thing as removing life-sustaining treatment
o No fundamental right to PAS because no long-standing tradition or history
o So government needs only a rational basis for distinction:
§ Killing v. letting die
§ “Double effect” reasoning
· Not similarly situated, so no equal protection violation
o Result: Those on artificial life support can order food and water ended (effectively receiving physician assisted suicide) but terminally ill patients not on artificial life support do not have the same right

III. Intro: Equal Protection
· 14th Amendment: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”
· Three different provisions to keep distinct:
o Privileges and Immunities Clause.
o Dormant Commerce Clause.
o Equal Protection Clause.
· “Equal protection” mean under the 14th Amendment
o Doesn’t mean that all laws must be equal but that each person is entitled to “equal protection.”
o Race is primary consideration given historical background of the 14th Amendment.
· Court has implied that the equal protection clause against the federal government is in the 5th Amendment
· Equal Protection relates to protecting against bad governmental categories or groups.