CON LAW II – Fall 2013 – Rao
1. Incorporation
– Before the 14th Am., BoR didn’t apply to State governments until the 14th amendment was ratified. The amendment/DPC explicitly applied to the states by incorporating the BoR (first 8 amendments subsequently applied to State govts)
1) Fundamental Fairness Approach – provision of the BoR that will apply to the states are those that deal with liberty was “whether the right was fundamental to principle of liberty or justice…and whether to abolish the right would go against justice.” à some of BoR is incorporated but other shit is also applied given that they are essential to the order of liberty and fairness
*critique: Justice Black thought this shit was too subjective and arbitrary
2) Total Incorporation – Idea that the 14th Amendment of the DPC incorporates everything in the BoR and first eight amendments and NOTHING ELSE. There are no other rights that apply.
3) Selective Incorporation – It incorporates most of the BoR but not all of the provisions against State governments. It also incorporates unremunerated rights that are essential to order, liberty and fundamental fairness. THIS SHIT IS WHAT WE HAVE NOW.
*What is not incorporated?
1) 5th amendment grand jury indictment
2) 7th amendment right to a jury trial in civil cases exceeding 20 bucks
3) 3rd amendment: prohibiting the quartering of soldiers in people’s houses in times of peace
NOTE: 2nd amendment, right to bear arms has recently been incorporated
2. Privileges and Immunities (Slaughter-House cases)
* (1873): Held that (1) right to earn a living is a privilege & immunity of U.S. citizens; (2) P&I under 14th distinguishes between U.S. and state citizenship; (3) Ct. won’t use 14th as an open-ended license to enforce broad principles and impose significant restraints on state legislation
3. Rise and fall of Lochner
* An act must have a direct relation, as a means to an end, to an appropriate and legitimate state objective to be fair, reasonable, and appropriate use of state police
* Right to purchase / sell labor is protected by substantive due process
* Lochner was overruled and since then, economic regulations of a similar nature have not been struck down
Tiers of Review:
RATIONAL BASIS REVIEW (RBR)
INTERMEDIATE REVIEW (IR)
STRICT SCRUTINY
(SS)
The law must be RATIONALLY related to serve a LEGITMATE state interest.
**Note over inclusiveness and under inclusiveness is allowed.
** RBR w/ Teeth: Where court is being less deferential to legislature.
The law must be SUBSTANTIALLY related to serve an IMPORTANT state interest.
**Note court has not officially recognized this std.
The law must be NARROWLY tailored to serve a COMPELLING/NECESSARY state interest.
14th Am. Due Process Clause – Nobody shall “be deprived of life, liberty, or property without due process of law (substantive and procedural)
– procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.
14th Am. Equal Protection Clause – No state shall … deny to any person within its jurisdiction the equal protection of the laws
Distinction b/w DP and EP: EP fundamental rights exist only in presence of inequality in relation to another group. DP rights exist always, regardless of whether there is inequality in relation to another group.
o However, rights which are fundamental that are infringed upon can be bound under either DP or EP. Substantive DP was avoided due to the negative connotations of the Lochner era. However, the effect is the same whether a right is deemed fundamental under EP or DP → Govt. infringements are subject to SS.
SUBSTANTIVE DUE PROCESS ANALYSIS
I. Is it a fundamental right?
a. Fundamental Rights: “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed. Fundamental Right? →Apply SS
(1) Contraception (Griswold, Eisenstadt)
(2) Abortion (Roe, Casey, Carheart)
(3) Family Relationships ( Moore, (BUT SEE ALSO Belle Terre), Troxel, Michael H)
– extended family get protection, but defn. of family is viewed differently, which is primarily set by tradition
(4) Sex? Intimate Relationships (Lawrence)
(5) Marriage (Zablocki, (BUT SEE ALSO Jobst) Boddie) à not explicitly a fundamental right yet
(6) Right to Refuse Treatment (Cruzan)
– Dr. Assisted Suicide NOT fundamental (Glucksberg). This may change as values crystalize
b. Determine Tradition: See Michael H.
1. Specific Traditions
2. Careful Description of the Tradition (see Glucksberg)
3. F(x)al Approach
4. Trajectory Approach:
II. Is the state interest compelling?
a. Determine “Compelling” State Interest
III. Is the means chosen narrowly tailored?
a. Is it Narrowly Tailored
1. Less Restrictive Alternatives
IV. Effect of the Law?
a. Directly Interfere w/ Fundamental Right(Zablocki)
b. Incidentally Interferes w/ Fundamental Right(Bowen, Jobst) à (i.e. subsidies is permissible)
V. Does the law serve the Govt. Purpose?
a. Marginally serves govt. objectives? (See Moore)
RATIONAL BASIS REVIEW (RBR)
INTERMEDIATE REVIEW (IR)
STRICT SCRUTINY
(SS)
The law must be RATIONALLY related to serve a LEGITMATE state interest.
**Note over inclusiveness and under inclusiveness is allowed.
** RBR w/ Teeth: Where court is being less deferential to legislature.
The law must be SUBSTANTIALLY related to serve an IMPORTANT state interest.
**Note court has not officially recognized this std.
The law must be NARROWLY tailored to serve a COMPELLING/NECESSARY state interest.
PRIVACY
Griswold v. Connecticut (1965) (STRUCK DOWN àState statute that fined physicians who give info to married persons to prevent conception)- SS instead of RBR because a “fundamental right”
**HOLDING by Douglas: BoR has a penumbra where privacy is protected from governmental intrusion, while not expressly stated, is necessary to make the express guarantees meaningful. The State’s effort to control marital activities is broad and impinges on protected Constitutional freedoms.
– Natural right: marriage is a privacy right older than the Bill of Rights- is in the “zone of privacy” created by several fundamental Const. guarantees.
– Part of the “penumbras and emanations” from const. guarantees
o Looks to other parts of CX text, b/c “privacy” isn’t in the CX, but referred to in: 1st, 3rd, 4th and 5th Am
– Creates implied right that we can infer from the delineated sections.
– The types of privacy that Griswold protects:
o Spatial privacy: The home is sacred, the location is private
o Informational privacy: e.g. contraception evidence in garbage.
o Relational Privacy: Marital relations are long recognized as private
o Sexual privacy: privacy to have intercourse and not bear children
– *Most quoted/cited part of Griswold** Harlan (CONCUR)
o Liberty guaranteed by DPC/14th Am. is a rational continuum which incl. a freedom from all substantial arbitrary imposition and restraints. Due Process has not been reduced to any formula.
o Balancing test: The court seeks to “represent the balance of liberty and the demands of organized society.”
– Supported by 9th Amend. à Goldberg (CONCUR)
o Language & history of 9th Amd. à reveals that framers of the Const. believed that there are add’l fundamental rights protected by gov. infringement.
– NO à 9th Amend. isn’t used to restrict States à Black (DISSENT)
o 9th amend. is not as sword for the Court to add more rights; but a shield rights for people to gain more rights through amendment process.
– Distinction btw Lochner & Griswold:
o Lochner relied on economic laissez faire theory
o Whereas Griswold dealt with marriage- a fundamental social right
§ different sort of liberty, preventing pregnancy is different than economic freedoms.
– implications of making distinction btw economic & social rights
o While the Const. doesn’t have a “hierarchy of rights” in its text, but rights re: marriage/sex/body are prioritized over economic rights.
CONTRACEPTION
– Extension of Griswold à Eisenstadt v. Baird (1972- Brennan) (Mass. law prohibiting distribution to unmarried persons for the prevention of conception)
o STRUCK DOWN à violated EP b/c it = dissimilar treatment for married & unmarried persons.
o Not a suspect class: distinction btw married and unmarried persons is not a suspect class meriting heightened scrutiny; RBR was utilized
o No sufficient Justification: statute does not prohibit the distribution of contraceptives to prevent the spread of disease
§ plainly unreasonable to assume that Mass. has prescribed pregnancy and the birth of unwanted child as punishment for fornication.
– Strict Scrutiny à Carey v. Population Services Int’l (1977)(NY law prohibited ppl other than pharmacists from distributing contraceptives)
o Restrictions on the distribution of contraceptives burden the freedom to make such decisions.
o Therefore, the challenged law may be justified only by a compelling state interest and must narrowly drawn to express only the legit. state interests at stake. à there was none found here
ABORTION
ROE v. WADE (1973- Blackmun) (TX law: abortion is a crime unless it would affect the life of the mother à STRUCK DOWN)
**HOLDING: Pursuant to the concept of liberty in 14th Am/DPC, the right to privacy encompasses a woman’s decision. However, some state regulations in the areas protected by that right is appropriate.
– A state may regulate the abortion procedure that rsbly relates protection of maternal health or that of potential human life. fundamental rights = Regulationss upheld only by a compelling state interest.
– The “zone of privacy” encompasses a woman’s right to choose, but the “fundamental right to privacy” must outweigh the compelling state interests of (1) protecting the health of the woman and (2) protecting potential life.
– Preliminary test of whether “Personal Privacy” is implicated: only personal rights that can be deemed “fundamental or implicit in the concept of ordered liberty” are protected.
– While Const. doesn’t mention right of privacy, Court recognized zone of privacy exists:
§ the penumbras of the BoR [Griswold]
§ concept of liberty in the 1st section of the 14th Amd.
– STRICT SCRUTINY:
o Where certain fundamental rights are involved à regulation limiting these rights may be justified only by (1) a compelling state interest & (2) legislative enactments must be narrowly drawn to express only the legit. state interests at stake.
– BALANCE: Ct tries to balance rights of woman & rights of the state to protect potential life
– Trimester framework: **in later cases, Ct. has disavowed trimester, but Viability survives**
o T1: state cannot regulate Abortion b/c there is no compelling govt’l interest
o T2: state can regulate abortion but ONLY to protect woman’s health;
o à à “viability” stage (as early as 20 and 24 weeks of pregnancy à earliest point to which fetus can survive outside of the womb;
o T3: state can proscribe abortion except if necessary to preserve women’s life/health à states has justification in protecting life
– What Is “Viability”?
o Where, after this point, state can mandat
e a prior case as a response to the Ct’s const. duty.
– Judicial Legitimacy: Overruling Roe’s essential holding à would have profound costs & unnecessary damages to the Court’s legitimacy & the Nation’s commitment to the rule of law.
– Viability line upheld: before time of fetal viability, woman free to terminate pregnancy w/o state interference
o Medical emergency exception must remain: State has power to restrict abortions after viability, if the law has exception for pregnancies which endanger the mother’s life/health.
– Rejects Trimester framework: undervalues State’s interest in potential life.
o **Replaces Trimester framework with “Undue Burden” standard**: state cannot place undue burden on woman’s right to terminate her pregnancy. *LESS than Strict Scrutiny!*
o Undue burden = any regulation placing a substantial obstacle in the path of woman’s choice cannot be considered a permissible means of serving its legitimate ends.
o Regulations which do no more than create a structural mechanism are permitted, if they are not substantial obstacles to the woman’s exercise of the right to choose.
– Language of liberty, not privacy: “Liberty finds no refuge in a jurisprudence of doubt.”
o Roe is an exemplar of liberties stated in Griswold: personal autonomy & bodily integrity,
o Ct: Liberty has a stronger textual foundation than “fundamental right” of privacy
o Termination of pregnancy is a right derived from the DPC of the 14th Amendment
– Casey court wants to give greater weight to protecting the fetus!
o “Undue burden” std allows State to regulate MORE, instead of rigid trimester system
o Watering down abortion right from “fundamental right” to “liberty” idea under DP
§ Why? If access to abortion was a fundamental right à none of Casey’s regulations would have been able to stand. Would be unconst.
Information from doctors- Informed consent à Upheld!
– when the government requires, as it does here, the giving of truthful, nonmisleading info. about the nature of abortion, the attendant health risk and those of childbirth, and the probable gestational age of the fetus à not unconstitutional, consistent w/ roe
– Not an undue burden! Women can still have an abortion, and they can choose to heed/not to heed the information. Can ignore the information.
o medical information given- common like for smoking, plastic surgery
– Rebuttal- Informed Consent bad b/c
o Coerces a woman to keep child: unfairly pressures and manipulates women by presenting only negative information about abortion
o Physicians speech
§ Forcing doctors to speak about health risks, etc may not be their own view.
24-hour waiting period à UPHELD, Ct: Not an undue burden
– Ct: NOT an undue burden, State of permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest.
Spousal Notification à Struck Down b/c of Possibility of Domestic Violence
– UNDUE BURDEN à invalid. Should these women become pregnant, the various forms of domestic violence other than bodily injury may be inflicted on her.
– State may not give to a man the kind of dominion over his wife that parents exercise over their children.
Parental Consent requirement à UPHELD (as long as there is a judicial bypass option)
– Judicial bypass action: If neither parent or guardian provides consent, court may authorize the abortion upon determination that: woman is mature and capable of giving informed consent and has in fact given her informed consent or that an abortion would be in her best interests.
– Counters: Not a good option b/c minors are too young; may be scared to go for judicial bypass
PARTIAL BIRTH ABORTIONS:
– Gonzales v. Carhart (2007) (Act, which prohibited abortions in which the death of the fetus occurs when “the entire fetal head or any part of the fetal trunk past the navel is outside the body of the mother
o (I) whether the Act imposes an undue-burden and substantial obstacle b/c its restriction on 2nd trimester abortions are too broad.
– Uphold Casey- State has legit interest in preserving fetal life: proscribes a method of abortion where a fetus is killed inches before completion of birth à expresses respect for the dignity of human life. +
– **HOLDING: Act NOT unconst. vague, overbroad, or an undue burden on the decision to obtain an abortion à Act applies only to a specific method of abortion.
o Only Intact D&E Prohibited: the Act applies only to the intact D&E; method (“partial-birth abortion” where the whole body is out) and not to the more common D&E; procedure (where pieces of the fetus are taken out not intact). Thus there is no undue burden or substantial obstacle placed on women who want to get abortions.
