Family Law Outline

 
 
TENSION BETWEEN PUBLIC REGULATION AND PRIVATE DECISION-MAKING
FAMILY LAW – SPRING 2014
I.        Private family choices – Constitutional protections for the family and its members
a.      Main social forces encouraging change in the past several decades
        i.      Feminist movement
      ii.      Children’s rights movement
    iii.      Birth control movement -> freedom from men and economic incentives
     iv.      Changing sexual mores – increasing visibility and acceptance of sexual minorities
       v.      Disillusionment with the traditional family
     vi.      Developments in reproductive technology
b.      Levels of scrutiny
        i.      Strict scrutiny – necessary to achieve a compelling state interest
      ii.      Intermediate scrutiny – substantially related to an important state interest – “undue burden” test
    iii.      Rational basis – rationally related to a legitimate state interest
c.       Roots of privacy
        i.      Reliance on personal “liberties” to limit the authority of government on parental autonomy, while never specifically mentioning a right to privacy
      ii.      Meyer v. Nebraska (1923)
1.      Prohibition on teaching any language other than English except to students beyond 8th grade
2.      Due process liberty guarantees right of the individual to acquire useful knowledge
3.      Natural duty of parents to give children an education
4.      Teacher has right to employment and to educate
    iii.      Pierce v. Society of Sisters (1925)
1.      Compulsion of general attendance at public schools. SOS alleges conflict with rights of parents, children, schools, and teachers
a.      Right of child to influence parents’ choice of school
b.      Right of parent to direct the education of their children
c.       Right of schools and teachers to engage in a useful business
2.      No reasonable relation to a competent state purpose
d.      The right to privacy – foundation
        i.      Traditionally, domestic relations belong to the laws of the States
      ii.      Griswold v. Connecticut (1965) – changed traditional approach as the first case ever to articulate a constitutional right to privacy
1.      Director of PP charged with giving information and advice to married persons on contraceptives
2.      First Amendment has various penumbras where privacy is protected from government intrusion
3.      Various guarantees in the Bill of Rights create zones of privacy
a.      Private acts (intimate marital relationships) vs. public interest (family growth)
b.      “In forbidding the use of contraceptives rather than regulating their manufacture or sale, maximum destructive impact upon a relationship within a zone of privacy”
4.      Due process is violated “basic values implicit in the concept of liberty”
5.      Dissent: No right to privacy unless prohibited by some specific constitutional provision
    iii.      Eisenstadt v. Baird (1972)
1.      Prohibition on giving contraceptives to prevent pregnancy to single persons, while allowing married persons to obtain contraceptives to prevent pregnancy
2.      Equal protection analysis
a.      Right of individuals to access contraceptives must be the same regardless of marital status
b.      The right of privacy is the right of the individual to be free from government intrusion into such a fundamental decision as to bear children
c.       No legitimate health purpose or deterrence from premarital sex
e.      The growth of privacy
        i.      Abortion as a private choice
1.      State interests
a.      Protecting health of the mother
b.      Risky medical procedures 
c.       Protecting prenatal life
2.      Roe v. Wade (1973) (Strict scrutiny analysis)
a.      A woman has an interest privacy and autonomy over her health and body
b.      State’s interest in protecting the pregnant woman’s health becomes compelling at the end of the first trimester
                                                                                i.      The pregnant woman cannot be isolated in her privacy and at some point must be balanced against the potential human life
c.       After viability, the state can regulate abortions to promote prenatal life, except when necessary to save the life of the mother
3.      Abortion and motherhood
a.      Pro-choice position embraces feminist and progressive equal opportunities for woman and men must include right to choose to bear children
b.      Abortion opponents believe men and women are intrinsically different and motherhood is the most fulfilling role for a woman
4.      Abortion and feminism – differing views
a.      No one has any right to your body unless you give him that right
b.      Women should have the right to choose since they bear the greater burden – physically, emotionally, mentally
c.       In contrast, women have a moral obligation to bear children, embedded in her unique lifegiving female reproductive power
d.      Regret rationale justifies abortion restrictions as a way to protect women from chooses they do not understand and may eventually regret
5.      Comparative law (for a policy question)
a.      Most EU nations recognize abortion as a fundamental human right
b.      Some countries have tightened restrictions in the last 15 years
c.       China’s 1-child policy leads to forced abortions and involuntary birth control
      ii.      Burden on privacy right to an abortion
1.      Gonzales v. Carhart (2006)
a.      Partial-Birth Abortion Ban Act, which regulates a specific abortion procedure
b.      Act is does not impose an “undue burden” because it does not place a substantial obstacle in the path of a woman seeking an abortion
                                                                                i.      Explicit requirements
                                                                              ii.      Alternative procedures are available
                                                                            iii.      Medical uncertainty over possible significant health risks is not an undue burden
2.      Is the undue burden standard the governing rule?
3.      Abortion funding
a.      States can refuse Medicaid coverage for nontherapeutic abortions as a way of encouraging childbirth
b.      Roe’s protection of the right to abortion does not confer an entitlement to funds, even when necessary to preserve the women’s health
c.       Effects on race, class, etc. – does this lack of funding restrict or completely obstruct a woman’s choice?
4.      Informed consent
a.      Court upheld state regulations mandating the patient’s prior written consent, regardless of the stage of pregnancy, in Planned Parenthood v. Danforth
    iii.      Liberation of privacy
1.      Lawrence v. Texas (2003) – overturned Bowers
a.      Reasoning frequently used in marriage cases, especially same-sex, even though it factually concerned sodomy
b.      Bowers’ key characteristics compared to Lawrence
                                                                                i.      Bowers upheld a statute outlawing ALL sodomy
1.      Lawrence statute TARGETS sodomy between same-sex partners
                                                                              ii.      Bowers held no fundamental privacy right at stake
1.      Lawrence holds the privacy at stake, private sexual behavior, is protected by due process “liberty” guarantees
                                                                            iii.      Bowers used the rational basis standard
1.      What standard is used in Lawrence?
                                                                             iv.      Bowers looked at the issue too narrowly, as the right to engage in certain sexual conduct. Instead, it was a broader privacy interest
c.       Liberty and due process presumes an autonomy of s