Fundamental Rights Flashcards
Are fundamental rights specifically stated in the Constitution?
No. They are implied through the amemdments
What is the consequence of finding something as a fundamental right?
It is automatically held to strict scrutiny.
Is the Right to Marry a fundamental right?
Yes. The right to marry is a fundamental right and it is held to strict scrutiny.
How will the court handle divorce?
The right to divorce is held to strict scrutiny because to remove that right means that someone cannot marry someone else.
Do parents have a fundamental right to custody of their children?
Parents have a fundamental right to custody of their children. A natural parent’s desire for and right to the companionship, care custody, and management of his or her children is an interest far more precious than any property rights.
What is the Bright Line Rule regarding unwed fathers of children upon the death of the mother?
The father does have a fundamental right to custody of his children, however, the level of activity of the father at the time of the mothers death is important. If the father was active in the lives of his children, then he automatically has a right, however, if he was not active, then no hearing is required prior to termination of his rights.
In Moore v. City of East Cleveland, the City made it against the law for anyone who as not a family member to live within the home. How did the court approach this?
The court held that the state does have an interest in this, but not enough to satisfy strict scrutiny. So the rule was declared unconstitutional.
What scrutiny is the right to control the upbringing of children held to?
Strict. Parents have the right to parent their children as they please.
Is the right of parents to raise their children absolute?
No. The right to make parenting decisions is not absolute and can be interferred with by the state if necessary to protect a child.
In what ways can the state interfere is teh right of parents to parent their children?
Requiring school attendance, regulate or prohibit child labor, among other things.
Is the Right to Procreate a fundamental right?
Yes.
Is the Right to not Procreate a fundamental right?
Yes.
What are the Bill of Rights “Penumbras?”
They are a set of fundamental rights that are subject to strict scrutiny whenever the government wants to interfere.
Is there a difference between married and unmarried people when examining privacy rights?
No.
What is the “Zone of Privacy” seen in Roe v. Wade?
The Constitution does not explicitly mention privacy. But it does have personal privacy, and certain zones of privacy. A womans right to an abortion falls within their zone of privacy.
Is the Trimester approach seen in Roe v. Wade still good law?
No. The holding of Roe v. Wade is valid, but not the test.
Is abortion of fundamental right?
Yes. But with restrictions.
What is the test for when and how abortion is regulated seen in Planned Parenthood v. Casey?
VIABILITY AND UNDUE BURDEN TEST
1) Viability - A woman has the right to choose to terminate her pregnancy before the point of viability. Viability is the time at which there is a realistic possibility of maintaining and nourishing life outside the womb.
2) Undue Burden - Balancing of the woman and the states interests. An undue burden exists and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion.
What is the viability portion of the viability and undue burden test for abortion?
A woman has the right to choose to terminate her pregnancy before the point of viability. Viability is the time at which there is a realistic possibility of maintaining and nourishing life outside the womb.
What is the undue burden portion of the viability and undue burden test seen in Planned parenthood v casey?
Balancing of the woman and the states interests. An undue burden exists and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion.
a) A state may ensure the woman’s choice is informed and advancing towards that interest.
b) The state may regulate the medical procedures for the health and safety of the woman.
Abortion - Are waiting periods Constitutional?
Waiting periods are constitutional as long as they do not create an undue burden on the woman.
Abortion - Are laws requiring a woman to be educated about the abortion constitutional?
A law requiring a woman to be educated about the abortion and the fetus was unconstitutional because it was clearly intended to discourage the woman from having an abortion. This discouragement is an undue burden.
Abortion - Is the requirement of Spousal Consent constitutional?
The requirement of spousal consent is always unconstitutional. Although a marriage involves both a man and a woman, that does not give the husband a veto power.
Abortion - Does the government have to fund abortions?
No. The state and federal have the power to decide what they fund. They cannot be required to cover abortions. Even if the government covers childbirth, they do not have to cover abortions.
