Fundamental Rights

Question 1

What are the Fundamental Rights?

Answer 1

1) Marraige
2) Reproductive Autonomy
3) Abortion
4) Medical Decisions
5) Sexual Privacy
6) Travel
7) Right to Vote
8) Access to Justice

Question 2

“Griswold” and “Eisenstadt”

Answer 2

“Griswold” gave the fundamental right to “not” procreate to MARRIED couples only.

“Eisenstadt” says no difference between married and unmarried couples

Look to see if:
- IS THE DIFFERENT CLASS SITUATED THE SAME?

Question 3

“Griswold” and “Eisenstadt”

Answer 3

“Griswold” gave the fundamental right to “not” procreate to MARRIED couples only.

“Eisenstadt” says no difference between married and unmarried couples

Look to see if:
- IS THE DIFFERENT CLASS SITUATED THE SAME?

Question 4

What test does Abortion get

Answer 4

UNDUE BURDEN TEST

Question 5

Casey Abortion standard

Answer 5

1) Pre- viablity, state can regulate abortion so long as it does not create an undue burden for women to get abortion
2) Post-Viability, state can ban abortion but must make an exception for health of the woman

Question 6

GOV’S ARGUMENT FOR FUNDAMENTAL RIGHTS

Answer 6

• Not a fundamental right and passes RBR

- Even if it is a fundamental right it satisfies SS

Question 7

How to Argue for a New Fundamental Right

Answer 7

(1) What is the Right?

(2) Is it deeply rooted in our countries history and tradition?
- If yes, → SS
- No? → RBR

Question 8

Things to consider for “deeply rooted.”

Answer 8

(1) Our own history
(2) State law/State practice

(3) World history
Highly arguably
World history/Foreign international law

Question 9

PLAINTIFF’S ARGUMENT FOR FUNDAMENTAL RIGHTS

Answer 9

• It is a fundamental right and it fails SS
  Look to:
  The nature of the right
  Deeply rooted in our nation’s history or tradition
• Even if it is not a fundamental right, gov fails at RBR

Question 10

What level of scrutiny does abortion get?

Answer 10

Abortion is a strange one, it is the only one that gets the “undue burden” test.

Question 11

Right to Travel

Answer 11

Test:
- It protects the right of a citizen of one state to enter and to leave another state.

• The right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state.
• For those travelers who elect to become permanent residents, the rights to be treated like other citizens of that state.

Question 12

Standard under Casey (look to point of viability)

Answer 12

Pre-Viability: State can regulate abortion as long as it does not create an UNDUE BURDEN for women to get abortion.

Post-Viability: State can ban an abortion but must make an exception for the life/health of the woman
-State may ban abortion entirely if they want.

Question 13

Examples of “Undue Burden” and “Not Undue Burden”

Answer 13

• Spousal consent to get abortion pre-viability
• Spousal notification pre-variability
• Parental consent for minor
  - No, unless no judicial override? → Undue Burden
• 24 hour waiting period is NOT undue burden
  challenge it “as applied” is an absolute ban on client and therefore an undue burden
• Required info that Doc has to give patient is NOT an undue burden, so long as info is accurate

Question 14

Assisted Suicide “Right to Terminate Life on Own Terms”

Answer 14

This is not a fundamental right to assisted suicide. So state may regulate or ban it (but State doesn’t have to if they don’t want to)

Question 15

2 Distinctive Parts to Access to Justice

Answer 15

(1) Right to go into independent judiciary

(2) Right to remedy for a wrong the government has committed

Question 16

Right to Vote

Answer 16

If something looks, smells, or acts like a poll tax… it gets strict scrutiny

Question 17

Right to Vote Balancing Test

Answer 17

(1) Degree of intrusion of the right to vote (How hard to make it to vote)
(2) The government’s interest.

Question 18

PLAINTIFF’S ARGUMENT FOR RIGHT TO VOTE

Answer 18

• Voter ID operates as an absolute bar and therefore, strict scrutiny applies and fails.
  (There is a lessor discriminatory way)
• Even if it is a general law, it fails under balancing test.
  Government will apply the opposite sides.

Question 19

2 Distinctive Parts to Access to Justice

Answer 19

(1) Right to go into independent judiciary

(2) Right to remedy for a wrong the government has committed

Question 20

When will the Court strike the fee?

Answer 20

• The Court will strike the fee when there is an absolute bar to justice, in a case where it involves a fundamental right or important right

Question 21

Right to Vote?

Answer 21

This is just a balancing test, not trying to heightened level of review.

Question 22

Examples of when Court will strike a fee.

Answer 22

Fee for filing divorce (like marrying, it’s a fundamental right)

Appellate fee when woman was about to lose her children (fundamental right to parent)