Fundamental Rights

Question 1

Fundamental Rights

Answer 1

Fundamental rights are treated under both 5A substantive DP and 14A EP
* Substantive DP: applied if a right is denied to all
* EP: applies if a right is denued to some but not others
* Govt. acts that do not implicate fundamental rights receive rational basis review
* Right to privacy, right to vote, right to travel

Question 2

Right to privacy

Answer 2

An inferred right that encompasses several rights with varying levels of scrutiny
* Strict scrutiny review:
1) Right to marry
2) Right to procreate
3) Rights concerning family and children
a) Right to custody of one’s children
b) Right to keep family together
c) Right to control children’s upbringing
4) Right to contraceptives
* Separate or unknown levels of review:
1) Right to engage in private consensual homosexual activity (unknown)
2) Right to refuse medical treatment (unknown)

Question 3

Right to vote

Answer 3

Usually implicated under the EP clause

Question 4

Right to travel

Answer 4

Usually implicated under the EP clause

Question 5

Abortion

Answer 5

• As of 2022, abortion is no longer recognized as a substantive DP right included in the right to privacy
• Dobbs v. Jackson Women’s Health (2022)
  -U.S. SC held that the Const. does not confer. a right to abortion, overruling Roe v. Wade and Planned Parenthood v. Casey
  -Individual states now have the authority to regulate access to abortion