ConLaw I Outline, Spring ‘16 – Shannon Gilreath
I. Substantive Due Process and Fundamental Rights
Analysis
Identify the Right – What is the asserted right?
Fundamental Right or Liberty Interest?
Fundamental Right
Twining and Palko: A right is fundamental if in light of historical practice, it is a “fundamental principle of liberty and justice which inheres in the very idea of free government” or the proposed right is “of the very essence of a scheme of ordered liberty.”
Liberty Interest
Not a recognized FR; interest in personal autonomy (Abortion, end of life decisions, homosexuals’ rights to privacy at home)
Scrutiny Level
Rational Basis
Economic Cases
Right to die
Rational Basis with Bite
Right to Refuse Treatment
Undue Burden – Abortion Cases
Heightened scrutiny… a form of ad hoc balancing while considering the totality of the circumstances and weighting the degrees of interference with a woman’s liberty interest and state’s interest in promoting life.
Strict Scrutiny – If it is a fundamental right.
(1) Compelling state interest, (2) narrowly tailored, and (3) least restrictive means.
End-Means Fit
Who has the burden?
Level of Inclusiveness
Both
Privileges and Immunities Clause
Incorporated Bill of Rights
Right to travel to the national capital
Access to seaports
Access to federal courts/offices of any state
Right to protection on high seas & diplomatic aid
Use of navigable interstate waterways
Right to “transfer” state citizenship
Rights secured by 13th (slavery) & 15th
Right to due process
Right to interstate travel
Speech/Press/Assembly/Religion
Right to Bear Arms
Quartering Troops (States)
Search & seizures
DPC/Double Jeopardy/ Grand Jury (States), Self incrimination, Takings
Right to Counsel/ Right to confront & call witnesses/speedy trial/impartial jury
Civil jury trial (States)
Cruel & Unusual Punishment
Unenumerated Substantive Due Process
Fundamental Rights —- TEST: Twining & Palko — Ct hesitant to add new ones
Meyer (1923)
Fundamental right in raising child in the manner a parent sees fit
“[Liberty] denotes . . . the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up a child, to worship God accord to the dictations of his own conscience, and generally to enjoy those privileges long recognized at C/L as essential to the orderly pursuit of happiness by free men.”
Skinner (1942) – Marriage & Procreation are fundamental right
“Marriage & procreation are fundamental to the existence and survival of the race.”
Loving v. Virginia (1967) – Marriage (btwn races) is a fundamental right
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.”
Griswold (1965) – J. Douglas — PRIVACY
Purported Right: Fundamental right to marital privacy via contraception
“The right of privacy in the marital relation is fundamental and basic”
Statute seeks to achieve its goals by means that are destructive to the fundamental constitutional guarantees to a “zone of privacy”
1st Amend has a penumbra where privacy is protected from Gov’t intrusion (in light of entire BoR taken as a whole)
Level of Scrutiny: Strict Scrutiny
Douglas –right to privacy was implicit in the penumbras of the BoR (1, 3, 4, 5)
Baird (1972) – J. Brennan — PRIVACY
Holding: State cannot allow married people to use birth control while restricting unmarried people from doing the same
“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Roe v. Wade (1973) — PRIVACY
Right: “the right to privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
“[O]nly personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ are included in this guarantee of personal privacy.”
Fundamental b/c of import to women, not history
Forcing a woman to continue a pregnancy against her will imposes enormous physical, psychological burdens.
Considered cases dealing with family, reproductive autonomy
Justifications (burden of proof is on Gov’t to prove compelling interest)
Discourage illicit sex – Moral (insufficient)
Preserve the health of women – Health
Prenatal interests: no evidence that life starts at conception.
Holdings:
1st trimester cannot prohibit, state can only regulate licensure
2nd Cannot outlaw but can regulate procedure in ways reasonably related to maternal health.
3rd may prohibit unless life/health of mother in danger.
This is where the state ha
may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to chose childbirth over abortion. These measures must not be an undue burden on the right.”
State cannot act with the purpose of creating obstacles to abortion but it can act with the purpose of discouraging abortion and encouraging childbirth.
What is an Undue Burden?
“An undue burden exists … if its purpose or effect is to place substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
24-hour wait period requiring women to be told of info about the fetus was NOT AN UNDUE BURDEN.
Parental consent for minors was NOT UNDUE BURDEN.
Married woman to sign consent affirmation that she informed husband IS AN UNDUE BURDEN.
Gonzales (2007)
Liberty Interest: No right to partial birth abortion
Level of Scrutiny: Undue burden
“Where it has a rational basis to act, and 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 interest in regulating the medical profession in order to promise respect for life, including life of the unborn.”
Must be an undue burden for a “large fraction of women.”
Lawrence (2003) – This may also be used as a hybrid case for EPC
May not prohibit private consensual sex between consenting adults of the same sex.
“[L]iberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
Purported Interest: Right to engage in private consensual homosexual sex
History is the starting point but is not the end all-be-all.
Petitioner points to Griswold and the movement from there, wants to characterize the issue as personal relationship privacy.
Level of Scrutiny: speaks like it is rational basis… but talks about strict scrutiny perhaps this is RB+.
O’Connor wants EPC so they don’t have to overrule Bowers.
