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.
Abortion - Is the Requirement of Parental notice for a minor constitutional.
Yes, as long as the minor has a way to get around the parental consent requirement.
A state can require parental consent as long as the minor can get a judge to sign off on not getting the parental consent because they are able to make the decision themselves.
Can prisoners be forced to take Anti-Psychotic medications?
No.
Can a conscious individual refuse medical treatment?
Yes. A conscious and aware individual has the right to refuse medical treatment.
Can an unconscious individual refuse medical treatment?
Yes. But they must have:
1) Clear and convincing evidence as to the individuals desire while they were conscious and competent to state their desires;
2) Especially if they were in a persistent vegetative state.
Does an individual have a right to physician assisted suicide?
No.
What is the process to determining if something is a fundamental right?
1) Does the Due Process Clause protect those fundamental rights that are deeply rooted in history and implicit in the concept of the county;
2) Required that substantive due process cases a careful description of the asserted fundamental right.
Is there a freedom of sexual activity?
Unclear. They have used rational basis test in the past. There is a fundamental right to marriage, but not sexual activity.
Can the state create a database of drug users? (Walen v. Roe)
Yes. This is not an invasion of privacy.
Can a state monitor and track banking activity? (California Bankers v. Schultz)
Yes. To ensure that there is no fraudulent activity going on they can.
Is there a fundamental right to domestic travel?
Yes. When a law restricts travel from state to state, it will be held to strict scrutiny.
What are the three components to the right to travel?
1) Protects the right of a citizen of one state to enter and leave another state;
2) Protects the right to be treated as a welcome visitor rather than an unfriendly alien, and to become a permanent resident of that state;
3) The right to be treated like a citizen while located there.
Is there a fundamental right to international travel?
No. International travel will be held to rational basis.
Is the right to vote a fundamental right?
Yes. Any restriction on the right to vote will be held to strict scrutiny.
Are “poll taxes” Constitutional?
No. These inhibit peoples right to vote and will deter people from voting.
Under Reynolds v. Sims, what must be done about voter dilution?
All votes must be of nearly of equal population as is practicable and the state must make an honest and good faith effort to ensure that. Mathematical exactness or precision is hardly a workable constitutional requirement.
Is the state or federal level given more leeway when setting voting districts?
The state is. Federal law is allowed only minor variations of population. Whereas, the state is allowed much more leeway.
Is there a fundamental right to an education?
No. It is held to rational basis review because the right to an education is neither expressed nor implied in the constitution.
Is poverty a protected class?
No. Any statute regarding poverty will be held to rational basis review.
