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
Right to Abortion - What is not an Undue Burden ?
- 24 hour waiting Period
- a short waiting pd. is NOT UB on women’s right to abortion
- Licensed Physicians Requirement
- not UB to req. abortions be perf. by licensed physicians
- Prohibition of Partial Birth Abortions
- Informed Consent Requirement =
- Not UB to req. dr. to give patient relevant info needed for informed consent to the procedure
Spousal Notification = YES, is an Undue Burden
Right to Abortion - After Viability
States can prohibit abortions unless it’s nec. to protect the woman’s health or life
Right to Abortion - Parental Notice & Consent Laws for Unmarried Minors
Rights of parents to supervise the health & care of their minor children doesn’t always prevail over the indiv. rights of the children
- SCOTUS held that parental notification req. violate a minor’s right to abortion
- unless there is satisfactory judicial bypass procedure for teens who don’t want to consult their parents
Right to Abortion - Parental Notice & Consent
Judicial Bypass Procedure
Judicial Bypass Procedure - Must allow court to approve abortion for a minor w/out parental notification if the court finds:
- The minor is sufficiently mature & informed to make indep. decision to get an abortion, OR
- The abortion would be in the minor’s best interest
Right to Bear Arms
2nd Amendment safeguards this right
- not an absolute right
Right to Travel - Freedom of Movement
Strict Scrutiny - Every citizen is permitted to travel from state to state to change her state of residence or employment
- Any law that prevents an indiv. from moving into a state must meet strict scutiny
Right to Travel - Freedom of Movement
Durational Residency Requirements
Durational Residence Requirements - Any law that established durational res. req. must meet strict scrutiny
Right to Travel - Freedom of Movement
Voting Residency Requirements
50 Days Max, Such a pd. is needed to allow a state to maintain an accurate voting list
Right to travel - Foreign Travel
Rational Basis
- no fund. right to international travel so restriction are only required to meet rational basis std.
RIght to Vote - Restrictions on the Right to Vote
Strict Scrutiny
- 15th Amend. prohibits denying right to vote on basis of race & it’s a fund. rt. under Equal Protection
- Any law denying some citizens the right to vote must pass Strict Scrutiny
RIght to Vote - Unconstitutional Requirements
- Prop. Ownership Req. for the right to vote or hold office - Unconst.
- Exception - Special Purpose Gov’t Units (e.g. Water storage districts)
- Poll Taxes - Conditioning the right to vote on the payment of a poll tax in unsconst.
RIght to Vote - Restrictions Exceptions
- Residency
- Age
- Citizenship
- Felons - Many states deny the right to vote to convicted felons, even those who have finished their sentence & subseq. pd. of parole
RIght to Vote - Regulations Preventing Voter Fraud
Laws enacted to prevent voter fraud only need to be on balance desirable
RIght to Vote - One Person One Vote Principle
Applies any time reps are elected by popular election from indiv. districts
RIght to Vote - One Person One Vote Principle
Establishing Voter Districts
- Congressional Districts within a state
- Almost Exact Mathematical Equality when apportioning congressional districts within the state
- Congress Apportionment Among the States
- More Deference - Doesn’t have to meet almost exact mathematically equality
RIght to Vote - One Person One Vote Principle
State & Local Elections for Government Bodies
The variance in the number of persons included within districts for state or local elections for gov’t bodies must not be more than a few percentage points
RIght to Vote - One Person One Vote Principle
Exceptions
Special Purpose Gov’t Units
- gov can limit the class who are allowed to vote in special purp. gov’t unit
- if unit will have special impact on enfranchised voters (SCOTUS has only found specialization for water storage districts)
At Large Elections
- Constitutional unless theres a discrim. purp.
- all voters vote for all of the office holders ➞ no electoral districts to violate one person, one vote
What are not Fundamental rights?
Ct applies RB review for the following:
- No Fundamental right to Edu
- No Fundamental Right to Med. Services - No Fund. Right to phys-assisted suicide
- No Fund. Right to Practice a Trade or profession
- No Fund. Right To Housing
