Fundamental Rights Flashcards
What is the standard of review for Fundamental rights ?
Std. of Review for most Fund. Rights is Strict Scrutiny
Substantive Due Process or Equal Protection Violation ?
Substantive Due Process or Equal Protection Violation?:
- Denied to Everyone = Subst. DP Problem
- Denied to some But Not Others - EP Problem
Right to Privacy - Level of Scrutiny
Fundamental Right Under Substantive Due Process
- Strict Scrutiny Std.
- Means chosen are nec. to achieve compelling gov’t int.
Right to Privacy - What rights are included under the Right to Privacy?
- Right to:
- Marry
- Procreate
- Purchase & Use contraceptive
- Private intimate sexual conduct
- Read Obscene Material in one’s home
- parent
- Control upbringing of One’s Children
- Keep Family together
Right to Privacy - Right to Marry
Laws that unduly burden a decision to marry trigger Strict Scrutiny
- Same Sex Marriage - Under DP & EP clauses of 14th Amend. states can’t deprive same-sex couple of the right
- 14th req. states to recog. marriages perf. out of state
Right to Privacy - Right to intimate sexual conduct
State has no legit int in preventing consenting adults from engaging in private, non-com. sexual conduct
Right to Privacy - Right to read obscene material in one’s home
Limited to the home, doesn’t include right to sell, purchase or transport obscene material
Exception - Child Porn
Right to Privacy - Right of Parents
Right to Custody of Children
Exception - Irrebuttable Presumption that Husband is Father - A state, can create irrebuttable presumption that a married woman’s husband is father of her child
Right to Privacy - Right to Control Upbringing of One’s Children
- Laws requiring Kids to attend public school - Infringes on the right of parents to control upbringing of kids
- Grandparent Visitation - Right permits parents to forbid visitation w/ grandparents
Right to Privacy - Right to Keep Family Together
Includes extended family NOT unrelated ppl
Right to Privacy - Right to Physician-Assisted Suicide
there is not right to this
Fundamental Rights - Right to Privacy
Level of Scrutiny Unknown BUT still Fund. Right
- Right to Homosexual Activity
- Right to Refuse Medical Treatment
Right to Privacy - Right to Homosexual Activity
Level of Scrutiny - Unknown
- BUT State can’t punish consensual homo activity in privacy of own home
Right to Privacy - Right to Refuse Medical Treatment
SCOTUS didn’t set forth the test but held:
- Competent adults can refuse unwanted medical treatment, even life saving care
- Clear & Convincing Evidence Required for Treatment Termination
- State can require evidence of an incompetent’s wishes to stop life-sustaining treatment by C & C evidence
- Ok to prevent family members from making decisions to Terminate
- State can stop family members from making the decision
- Right to stop med. treatment belongs to the person getting the treatment
Right to Abortion - Prior to Viability
No Strict Scrutiny Std. for Abortion
- Prior to Viability = Undue Burden Test
- States can’t prohibit abortions
- States can regulate so long as the regulation doesn’t create an undue burden on a persons ability to get an abortion
- Gov’t has no duty to subsidize Abortions or provide facilities for abortions
