FUNDAMENTAL RIGHTS

Question 1

Fundamental Rights & the Right to Privacy

Answer 1

Fundamental rights (FR) are treated under both the 5th A Substantive DP and 14th A EP

• Substantive DP–Applies if right is denied to all
• EP–Applies if right is denied to some but not others

FR Overview:
* Right to Privacy–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
Note: A state can create irrefutable presumption that
husband is the father of a child
b) Right to keep family together (includes extended
family)
c) Right to control children’s upbringing
4) Right to Contraceptives

> > Separate or Unknown Levels of Review:
1) Right to Abortion
2) Right to Engage in Private, Consensual Homosexual
Activity (unknown)
3) Right to Refuse Medical Treatment (unknown)

• Right to Vote–Usually implicated under the EP clause
• Right to Travel–Usually implicated under the EP clause

Question 2

Right to Abortion

Answer 2

Abortion is a fundamental privacy right

Analysis–Turns on the viability of the fetus
* Viability = When fetus can survive outside the womb

• Pre-Viability–Regulation must not unduly burden abortion
  » States may to prohibit abortion, but may regulate as long as it does not create an undue burden
  » Examples:
• Undue burden–Spousal Notification
• No Undue Burden– 24-hr waiting period; Partial-birth
  abortion bans; Parental Consent Requirements
• Post-Viability–Prohibition on abortion is allowed unless medically necessary to protect the mother’s health

Parental Notice/Consent Laws for Minors–No undue burden if:

1) The law creates an alternative procedure whereby a minor can obtain an abortion by going before a judge
2) The judge can approve the minor’s abortion by finding either:
a) Abortion is in the minor’s best interests; or
b) The minis is mature enough to decide for herself

Subsidies–Govt has not duty to subsidize abortions or provide abortions in public hospitals

Question 3

Fundamental Rights Recap

Answer 3

A. Rights triggering strict scrutiny:
1. Right to marry
2. Right to procreate
3. Right to custody of children
4. Right to keep family together
5. Right to control raising of children.
6. Right to purchase and use contraceptive
7. Right to travel (under equal protection)
8. Right to vote (under equal protection)
9. Freedom of speech (first amendment)
10. Freedom of association (first amendment)
11. Free exercise of religion (if the law burdening religion is not a neutral law of general applicability-first amendment)
B. Triggering “undue burden”
1. Right to abortion
C. Trigger “rational basis”
1. Fright to practice a trade
2. Right to euthanasia
3. Right to engage in consensual homo activity
4. Right to education