declaration of rights

Question 1

What is the Declaration of Rights

Answer 1

Florida’s counterpart to the Bill of Rights of the United States Constitution (USC). Florida’s Constitution (FC) lays out some rights more expressly than the USC, for example the right of privacy, right to work, and the right to access the courts. Just as the USC, the FC protects fundamental rights such as the right to marry, travel, vote, and to acquire and possess property by heightening the level of scrutiny when reviewing a law that potentially impairs one of these rights.

Question 2

General Rights in Declaration of Rights

Answer 2

• Right to enjoy and defend life and liberty
• Right to pursue happiness
• Right to be rewarded for industry
• Right to acquire/possess/protect property
• Right to Marry
• Right to travel
• Right to vote (if qualifications are met)
• Right to privacy more expressly defined
• Right to work
• Right to collectively bargain
• Right to access the courts

Question 3

Fundamental Rights Rule

Answer 3

Fundamental rights are treated under both the 5th Amendment and the 14th Amendment of the United States Constitution (USC).

*Substantive Due Process applies when a right is denied to everyone. Equal Protection applies when a right is denied to some people or groups, but not everyone.

Question 4

Fundamental Rights Rule

Answer 4

Fundamental rights are treated under both the 5th Amendment and the 14th Amendment of the United States Constitution (USC).

*Substantive Due Process applies when a right is denied to everyone. Equal Protection applies when a right is denied to some people or groups, but not everyone.

Question 5

Right of Privacy

Answer 5

Under the right of privacy are included the rights (1) to marry; (2) to procreate; (3) obtain contraceptives; and (4) relating to children and family (custody, keeping family together and control over children’s upbringing)-all which all receive strict scrutiny-and the rights (5) to obtain an abortion; (6) engage in private, consensual homosexual activity; and (7) refuse medical treatment-which all receive separate or unknown levels of scrutiny.

Question 6

Right to Obtain an Abortion

Answer 6

Currently, abortion is considered a substantive due process right included in the right to privacy protected by the 5th and 14th Amendments of the United States Constitution. Viability of the fetus determines the permissive scope of regulation. Viability of the fetus determines the permissive scope of regulation. Viability means the point at which a fetus can survive outside of the womb. If a fetus is still at a point pre-viability, then a regulation may not unduly burden abortion. If the fetus is post-viable then states may prohibit abortion unless one is medically necessary to save the life of the mother.

Question 7

Examples of Undue Burdens to Abortions Pre-Viability

Answer 7

-Spousal notification
-Parental notification/consent requirement IF there is no provision for an alternative procedure where a judge can can approve the procedure:
*A minor may receive an abortion if either (1) the judge finds that the abortion is
in the minor’s best interest; or (2) finds that the minor is mature enough to
decide for herself.

*Governments have no duty to subsidize or provide for abortions in public hospitals

Question 8

Examples of Acceptable Restraints on Right to Obtain Abortions

Answer 8

• 24 hour waiting period
• partial birth abortion bans
• parental notice/consent provision that contains alternative procedure (judicial alternative)

*Governments have no duty to subsidize or provide for abortions in public hospitals