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Family Law
University of Michigan School of Law
Kochen, Madeline Sara


– Constant change
o No real constant definition of “family” or the responsibilities of family members
o Examples
§ Legalization of same-sex marriage
§ Increased recognition of children’s legal rights
§ Developments in reproductive echnology
§ Decreasing role of morality in our laws
o Family law used states’ domain, but Congress has recently passed laws on many issues of family law
o Movement toward uniform state laws
– “Family Law” explores: the legal regulation of the family and its members
– Central Themes
o Conflict between individual and societal interests
§ Individual interest: give family members decisional autonomy in private matters. (individual family members’ interests may conflict)
§ State interests: protect family members, idea of the family, promotion of marriage, etc.
– MK: Substantive due process vs. equal protection:
o Substantive due process analysis: emphasize the right as being so fundamental that govt. can’t interfere with it.
§ If a right is “fundamental,” the state can infringe on the right only if the state shows that it has a “compelling” state interest and that the law is “necessary/narrowly tailored” to achieve that interest. (strict scrutiny)
§ How do we know which state interests are “compelling”?
· The court just ad hoc decides.
· Whether the law is “necessary” or “narrowly tailored” is more of a logic question.
o Equal protection analysis: more about fairness, less power given to the underlying value/right.
§ Triggered when:
· A statute only applies to a certain class or group of people- i.e. the statute creates a classification.
· A suspect class is involved
· A fundamental rights is involved
o BUT ON EXAM: for “fundamental rights,” just worry about the Due Process claim (not the Equal Protection claim).
– MK: 3 levels of scrutiny
o Rational basis (very deferential)
§ Legitimate state interest, rationally related
§ Very hard for state to lose under this test
o Intermediate scrutiny (gender, out-of-wedlock births)
§ substantially related to an important state interest
o Strict scrutiny
§ Compelling state interest, narrowly tailored
§ Triggered for fundamental rights (whether articulated or not in the Bill of Rights)
· Exist within the notion of “liberty” under 14th A Due Process
· It’s only a fundamental right if the Court declares it to be a fundamental right
o A “liberty interest” is a looser concept.
o ***Sometimes, the Court will say it’s using one level of scrutiny, but it’s not really…


– Right to Privacy
o A contentious constitutional right
o Tries to establish unarticulated limits to state power
§ That there’s an inherent arena where people are free to act and that the govt. can’t invade
§ Not actually written in the constitution—thus, it’s so complicated b/c we’re suggesting there are limits to state power that are not expressly listed
§ Result: lots of debates about it comes from and what it means
– Standards of Review
o Rational Relationship: toothless test that gives a lot of leeway to the states
§ Reasoning: state is not invading one of core liberties
§ TEST: There is a rational relationship to a legitimate state interest
o Strict Scrutiny: applied when the state arguably intrudes in one of our fundamental rights
§ TEST: Must be narrowly tailored to advance a compelling state interests
§ Not giving state benefit of the doubt – no presumption that law is valid
o Intermediate Scrutiny: usually applies to issues concerning gender
§ TEST: Restriction must be substantially related to an important govt. interest
a. Access to Contraception: Both unmarried and married persons have a constitutional right to access contraception, and to decide whether or not they wish to bear a child
i. Griswold – married persons
Einstadt – unmarried persons
a. MK: in the abortion context
i. Roe: strict scrutiny analysis applied to abortion regulations. The right to privacy was extended to include the right to an abortion.
ii. Casey: But then, the Supreme Court greatly limited its scope- the standard changed to “undue burden” test.
1. State’s interest in fetal life grows as the pregnancy continues
2. A regulation not u/c unless it poses an “undue burden” – it “has the purpose or effect of placing a substantial obstacle” on the woman’s decision to have an abortion. We balance the state’s interest and the abortion right.
3. MK: Biggest changes from Roe:
a. The govt. has an interest in potential life right from the moment of conception.
b. States can regulate abortion to protect the fetus’s lifeàthe state can enact regulations simply to make it harder to get an abortion—i.e. the state can take a side on the abortion issue.
c. Both before and after Casey: the woman has the right to abortion THE ENTIRE TIME SHE IS PREGNANT, but the state can regulate and even ban it, as long as there’s a health exception for the mother.
iii. Abortion today:
1. State may not require spousal consent or notification.
2. State may require parental consent and/or notification prior to a minor’s abortion, provided that the state offers an alternative such as a judicial bypass.
b. Roe v. Wade (1973):à Fundamental Right to an Abortion; applied strict scrutiny.
i. Holding: A statute that prohibits getting or attempting an abortion, except for the purpose of saving the mother’s life, without regard to pregnancy stage or other interests, violates 14th A Due Process.
1. Before end of 1st trimester, woman’s doctor makes the abortion decision.
2. After 1st trimeste

burden” test: it’s restrictions on second trimester abortions aren’t too broad.
a. Follow cannons of construction- interpreting the standard so that it doesn’t prohibit standard D&E is the most reasonable reading of its terms. (MK: this is the opposite of strict scrutiny! The Court isn’t worried about reading the statute too carefully à this deviates from the past kind of scrutiny used in the abortion context.)
3. The act doesn’t impose an undue burden by not having a health exception.
a. Medical uncertainty whether act prohibition creates significant health risks creates a sufficient basis to conclude that facially the Act does not impose an undue burden.
ii. Majority opinion:
1. Govt. has legitimate and substantial interest in promoting fetal life.
2. TEST: As long as the state has a rational basis to act and doesn’t impose an undue burden (this part is from Casey), the state may regulate certain procedures to further these legitimate interests.
3. Instead, should use as-applied challenges against the Act.
a. These challenges may be maintained if shown that in discrete and well-defined instances, a particular condition has/will occur such that the intact D&E must be used.
iii. Dissent:
1. The majority bans a procedure that some doctors find necessary and proper in certain cases.
2. There is no exception for the mother’s health. (medical uncertainty means indicates the presence, not absence, of risk)
iv. MK: The Court just says- we’ll wait to deal with this when it happensàthen, bring an as-applied challenge. This is an astonishing thing about this opinion.
a. Planned Parenthood of Northern New England v. Heed (2006)- Children vs. Parents
i. Facts: A New Hampshire law prohibits performing abortion on a minor unless she gives parental notice at least 48-hrs prior, unless:
1. “death exception”: doctor says abortion is necessary to prevent her death and there’s not enough time to provide the required notice; or
2. “judicial bypass”: minor asks judge to allow the abortion if judge finds the minor is mature/capable of giving informed consent, or if judge finds performing the abortion without parent notification is in minor’s best interests.
ii. Holding: The act in its entirety is unconstitutional.
iii. Majority opinion:
1. TEST: “undue burden” standard from Casey.