Family Law Outline

 
Family Law
Dennis
Spring 2015
 
Privacy
·         Privacy (pg. 1-21)
o   Griswold v. Connecticut – Ds (Planned Parenthood and a doctor) charged with aiding and abetting couples with contraception. Court develops the penumbra rights, and they say there is a zone of privacy created by several guarantees.
§  Rule: Marriage and the right to privacy is a penumbra right guaranteed by the constitution of the US. (Bill of Rights, Due Process, etc)
§  Standard: Strict Scrutiny- so for state to undercut these rights, requires:
·         1.) compelling state interest
·         2.) Narrowly Tailored law
§  State interest (morality, increase white fam size, immigration fears, maintaining gender roles) not compelling and statute is overbroad prohibiting all contraception of everyone, including married couples
o   Eisenstadt v. Baird – professor was charged with delivering contraceptive advice to students and giving a girl vaginal foam. Married persons may obtain it, but not unmarried. Is there a rational basis to treat married and unmarried people differently?
§  Legislative Intent – is inconsistent and irrational, impermissible distinctions
§  Rule: the right to privacy is an individual right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
o   Meyer v. Nebraska – Man was charged with teaching the German language in schools. The court looks into whether this interferes with the right to life, liberty, or property. Is the statute (forbidding any instruction not in English) arbitrary or unreasonable? State interest – advocating America, helping children succeed in US
§  Rule: Persons have the right to teach and the right of parents to engage him to instruct their children under the Constitution. The government cannot interfere with right to teach and to learn. Or right to contract (employment)
o   Pierce v. Society of Sisters – Law requires parents to send their children to a public school in a certain area, and to do otherwise is a misdemeanor. Is this against the person’s right to choose what their children will do?
§  Rule: Persons have the right to nurture and direct a child’s destiny, and the have the right, coupled with the duty, to recognize and prepare him for additional obligations. Parents and guardians have the right to direct the upbringing and education of children under their control.
·         Shifting Standard of Privacy (pg. 21-59, 75-92)
o   Roe v. Wade – Texas statute made it illegal to procure an abortion. Woman challenged the statute saying that it was her personal right to have an abortion. Court applies a strict scrutiny approach because the court says that it is interfering with a compelling governmental interest in the right to a private life. The court holds that both interests, life of mother and fetus, are compelling, so narrowly tailored law is trimester framework.
§  Rules: (1) Governmental interest in the health of the mother: Led to the trimester framework – within the first trimester, no government regulations. Second trimester, government regulations are optional, (2) 3rd Trimester: Governmental interest in prenatal life: Point of viability becomes significant.
o   Planned Parenthood v. Casey – Overturns trimester framework: people challenged several provisions of Pennsylvania’s Abortion Control Act. This case is the one that ultimately introduced the “undue burden standard” in place of Roe’s strict scrutiny. No longer would the court apply the rigid trimester framework. The Court upheld the 24 hours requirement before the abortion and the printed materials. The court struck down the requirement that a woman get spousal consent to achieve an abortion.
§  Rule: Court held that Roe was still upheld for abortion freedom, but it ultimately rejected the trimester framework. Court held that a 24 hours requirement, the delivery of certain materials on abortion, and the information about the fetus was not an undue burden on a woman’s right to abortion and privacy. It is still a burden, but it is not as great as giving your husband a veto over your body. Distinguishes spousal consent: unconstitutional
§  Rule: Court held that a woman has a right to bodily integrity because each person has their own constitutional interests, so spouses may not have a veto over whether a woman gets an abortion.
§  Concurrence: these justices would have overruled Roe altogether and upheld these statutes. These justices were Rehnquist, White, Scalia, and Thomas. 
o   Gonzales v. Carhart – Court is considering the ban on the Partial Birth Abortions wherein a child is sucked out of the fetus and killed. Court recognizes that the state cannot create an obstacle for a woman getting an abortion before the point of viability, but that regulations that do no more than create a structural burden may be enacted to express profound respect for the life of the unborn. There is a state interest in fetus, medical community, woman’s choice (fully informed decision), and the dignity of human life and bond of mother and child.
§  Rule: Court holds that the statute is not too vague and isn’t an undue burden on women getting an abortion. Ultimately, the court no longer applies the strict scrutiny standard. Now, the court applies the “undue burden test” on whether a woman can procure an abortion. Court said no medical exception is necessary because this procedure is NEVER necessary. Congress is free to regulate this type of abortion.
§  Dissent: Justice Ginsburg, Stevens, Souter, and Breyer say that this is a burden on the right to abortion, and that the court should have approved an exception for the mother’s health. They say that the court ultimately decided this based on moral concerns.
o   Hobby Lobby Case – about employer coverage of contraceptives under Affordable Care Act. HL has religious convictions opposing them to contraceptive use. Does the ACA place an undue burden on HL that substantially interferes with their constitutionally protected right? If so, does the law survive strict scrutiny? HL asserts that compliance with the law would force them to enable employees to take action contrary to their religious beliefs.
§  Held – HL wins. ACA did not use the least restrictive means b/c there is an exception for religious organizations and nonprofits, which should expand to include religiously owned organizations like HL. Tension – defeats purpose of law if everyone is claiming exempt
o   Abortion as a Constitutional Right:
§  In favor: health of women is a fundamental right, morality is not appropriate driver for regulation on abortions, the right to bodily integrity and privacy and choice are fundamental rights, equal protection for women because birth falls only on women, to regulate would be an infringement on the rights of doctors and the medical community.
§  Against: state has a strong interest in the fetus, there are biological differences between men and women, abortion requires men and women to be safe and use contraception, it requires this matter to be left to states, etc.
o   Problem, pg. 81 – man and woman conceive a child in order to abort the child and donate tissue of the child to the sick father. The statute says that people cannot conceive a child for the purpose of donating tissue. What arguments?
§  Argue that this is still an infringement of the woman’s right to an abortion. Argue that it is an infringement of her right to privacy, her right to conceive (she can conceive but not for a particular purpose!), her right to privacy and privacy of marriage, and woman’s right to chose. Finally, the husband can argue it is an infringement on his right to life.
o   Cincinnati Women’s Services, Inc v. Taft – Plaintiff appeals judgment upholding a limit on minors seeking a judicial bypass of statutory parental-consent law. Women could only apply for one petition. Court applies the undue burden test on the statute.
§  Rule: It is an undue burden for a statute to limit the amount of times a young woman can apply for a judicial bypass petition around the abortion ban on abortions without parental notification. Court will look to the harmed individuals to see if there is a undue burden, and in this case those harmed are the ones that are applying for a bypass that have changed circumstances. Limitation on judicial bypass option is unconstitutional
·         The Liberation of Privacy (pg. 59-75)
o   Texas v. Lawrence – There is a Texas statute that makes same-sex conduct illegal. Majority strikes down the statute because there is no compelling state interest, and the Supreme Court ultimately decides to overrule Bowers.
§  Rule: The court holds that morality is not a sufficient justification for outlawing certain sexual conduct.
§  Notable: O’Connor agreed with the majority in Bowers, but she also voted with the majority here. She distinguishes that case because she said the Lawrence question is a question of Equal Protection.
§  Dissent: Scalia says morality should command because there are other morality legislation.
·         Privacy Conflicts (pg. 93-103)
o   Cruzan v. Director – Lady lost control of her vehicle and crashed. She was transported to the hospital and was on life support in a vegetative state. The family asked the hospital to remove all life support from the woman, but the hospital refused. The question for the court is whether the US Constitution forbids the establishment of the procedural requirement of clear and convincing evidence of the affected person’s wishes to die before terminating the life of that person. The state will allow an advanced directive or a proxy or surrogate to make these decisions.
§  Rule: The Constitution grants a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.
§  Rule: The Due Process Clause of he Constitution doesn’t repose judgment to make decision about lifesaving matters to anyone but the patient herself, so Missouri was correct in requiring clear and convincing evidence of the patients wishes to die or live.
§  Concurrence – says the families decision generally should be upheld, so defer to the family members’ own decisions.
§  Dissent – thinks the family should choose totally. Says the state should stay out.