SDP Analysis

Question 1

Analytic Framework

Answer 1

1. Is the law already regulating a fundamental right under DPC? If so, apply Strict Scrutiny
2. Argue Something Should be an Unenumerated Fundamental Liberty
   a. Unenumerated rights and the 9th Amendment
   b. What is the liberty interest in question?
   c. Apply tradition and history test (Palko)
   d. Applying Precedent
   e. Other Considerations
3. Applying Strict Scrutiny or Rational Basis Review
   a. Fundamental Right => Strict Scrutiny
   b. If fail to argue something is fundamental => Apply RBR

Question 2

Part 1: Is the government regulating activity that is a fundamental right?
(What is a Fundamental Right?)

Answer 2

Reproductive Rights

• A law that tries to regulate/sterilizes people (Skinner)
• A law that tells people how many children they need to have (Griswold / Einstadht)

Family Living Regulation (Moore v. City of East Cleveland)

Parenting Choices Regulation (Meyer v. Nebraska and Pierce v. Society of Sisters)

Medical Decisions Regulation (WA v. Glucksberg says Cruzan presumed there is a fundamental right to refuse affirmative medical treatment))

Sexual Intimacy Regulation / Marriage Regulation (Obergefell)

• Marriage Regulation (Zablocki v. Redhail)
• Marriage based on Race (Loving v. Virginia)

Exam tip: Sometimes a gov should just concede that it’s regulating activity that is a fundamental right b/c of established precedent of the categories below and instead should just argue that they satisfied strict scrutiny hurdle

Question 3

Part 2, Step 1: Unenumerated rights and the 9th Amendment

Answer 3

Fundamental rights are not limited to the BOR and judges can find an enforce other rights (this is the current approach of the court)

(a) NO ONE VIOLATES 9A – 9A doesn’t protect any substantive rights
(b) 9A is an instruction for how you interpret the rest of the constitution

Question 4

How to define the liberty interest in question

Answer 4

Plaintiff will want the liberty interest defined broadly (so it seems like a wide-ranging right)
(a) Broad descriptions: Griswold, Loving, Zablocki

Gov wants the liberty interest defined narrowly (so impact of RBR is small if not protected)
(a) Narrow descriptions: Bowers; Michael H; Glucksberg

NOTE: The judge gets to decide how the liberty interest is defined. Shows power of the court

Question 5

Part 2, Step 3: Palko Test/ Tradition and History Test

Answer 5

Whether it (whatever liberty interest is being protected) is a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental

Plaintiff will note that this test is a “starting point not a stopping point”

Gov agrees (Lawrence and Obergefell) but will also argue history is on their side:
- I.e., An activity has a history of being criminalized

(a) Gov will also point to what other states do (but what other states do doesn’t matter if it does violate 14A)

Exam tip: T&H looks at past legislation while step 3 of applying precedent is more looking at judicial precedent

Question 6

Part 2, Step 4: Applying Precedent

Answer 6

Plaintiff:
First argue: “these types of regulations involve the most intimate and personal choices a person may make in a lifetime, choices of decisional and spatial autonomy, that they are central to the liberty that is protected by 14A”.

Second: Compare/contrast to SDP precedent cases based on whether the decisional / spatial autonomy was infringed in a similar or different way. Decisional autonomy= intimate conduct, Spatial autonomy= activity happens in the home

Government:
1) Argue to follow or distinguish SDP precedent cases

Departure from Stare Decisis: Look at call of question

• Only discuss this if specifically asked.
• This is precedent for when you can depart from precedent
  (a) Has legal rule in case become “unworkable” (can judges apply it)?
  (b) Has society come to rely on the holding (detrimental reliance)?
  (c) Has the law changed to make the case obsolete?
  (d) Have facts changed? Was an assumption in prior case wrong

Question 7

Part 2, Step 5: Other Considerations

Answer 7

“P will argue that the court can rely on other consideration (see Lawrence and Obergefell)”

Question 8

Part 3: Fundamental Right = Strict Scrutiny

Answer 8

If Fundamental liberty interest (excluding abortion) => Strict Scrutiny

Ends-Mean Analysis

• The End/purpose must be COMPELLING goal not prohibited by the const
• The means (law) is only permissible if necessary/least burdensome way to achieve the purpose

(i) High hurdle for gov to satisfy (but still possible)
(ii) Compelling goal ex: National Security + Child support (Zablocki) + criminalizing incest or sex with a minor (Lawrence)

P ARGUE GOV CAN’T SATISFY SS BUT GOV WILL ARGUE YES CAN SATISFY SS

Question 9

Part 3: Not fundamental right= RBR

Answer 9

If non-fundamental Liberty interest => Rational Basis Review
e.g., Economic interest

Ends-Means Analysis
Ends: Is there a legitimate gov purpose? Permissible as long as court can conceive ANY goal not prohibited by Constitution

Means (law): Permissible as long as there is a rational relationship to the purpose
- Morality: Lawrence majority rule held that the government must have a non-morality driven purpose in addition to morality.

Question 10

Part 3: Williamson v. Lee Optical

Answer 10

Toolbox Case
Takeaway: As long as SC can conceive of ANY goal (doesn’t have to be the actual goal) then RBR is satisfied

Facts: Although opticians (who are not medical drs) are capable of measuring a lens and determining its prescription themselves, OK statute said they could only do it if they got a prescription from a medical eye dr.

Even court said the statute was wasteful and that the law was not in every respect logically consistent with its aims, BUT reasoned that the legislature MIGHT HAVE concluded the means were sufficient to improve eye care. Government regulation can indeed “exact a needless, wasteful requirement.” However the rationale is that it is for the legislature, not the courts to balance a law’s advantages and disadvantages

Question 11

US v. Carolene Products

Answer 11

The consumer protection law prohibiting the shipment of non-milk products labeled as milk passed RBR

KEY TAKEAWAY: Court applies a deferential approach to review of laws enacted by legislatures if they do not violate a fundamental right

Footnote 4 identifies when courts deviate from their new post-Lochner rule of apply Rational Basis and will say that constitutionality will not be presumed when:
(i) Legislation within a specific prohibition of Constitution/BOR
(ii) Legislation restricts political process
(iii) Prejudice against discrete and insular minorities
Prof: This used to be a good explanation of when courts used to be involved, but now justices have come out against this Footnote

Question 12

Reproduction and Contraception as a Fundamental Rights

Answer 12

REPRODUCTION

Skinner v. OK:
Law in OK permitted government to sterilize people who were “habitual criminals” (Robbery was one such crime but embezzlement wasn’t even though the 2 had the same sentences.)
(a) Strict Scrutiny against this type of law against someone who committed intrinsically the same quality of offense and sterilizes one and not the other.

Takeaway: Strict Scrutiny b/c right to reproduce is a fundamental right

CONTRACEPTION
Rule: If gov regulation is regulating birth control then we apply strict scrutiny (see Griswold)

Griswold v. Connecticut
Conn law prohibiting birth control invalid
(a) Harlan’s Concurrence: The majority should not infer a new right of privacy from the constitution; rather, the right to use contraception in marriage is supported by the Due Process Clause of the Fourteenth Amendment

This is majority rule today – when SC cites Griswold, it’s to Harlan’s concurrence

Justice Black’s Dissent in Griswold: Says majority uses overly broad definition of liberty. Says it’s not unconstitutional unless prohibited by some specific constitutional provision.

Question 13

Parental Choices as a Fundamental Right

Answer 13

Rule: if gov regulation tells parents what they can and can’t do w/ their child, this kind of regulation is subject to strict scrutiny.

Meyer v. Nebraska
NE law prohibited teaching in any language other than English and P taught child in German. SC said law was unconstitutional.
(a) Holding: Parents have a fundamental right to control the education of their children.

Pierce v. Society of Sisters
OR law requiring students to go to public school was unconstitutional.
(a) Holding: Law interferes with the fundamental right of parents and guardians to direct the upbringing and education of children under their control

Question 14

Marriage as a Fundamental Right

Answer 14

MARRIAGE
Rule: Gov regulation that regulates marriage infringes on the fundamental right to marry and thus gets strict scrutiny test.

Zablocki v. Redhail: Wisconsin law preventing remarriage by people w/ unpaid child support obligations from previous marriages is unconstitutional.

 - Compelling gov purpose: Yes => Ensure child support is paid
 - Law Sufficiently related to purpose: No. There are many alternative ways (could have law that garnished his wages). This law didn’t help a kid get any money. 

Prof: this case is more explicit about saying strict scrutiny is applied when gov regulates marriage and that the gov didn’t have a good means-end fit for the high hurdle

GAY MARRIAGE

Obergefell v. Hodges:
- Court interprets Lawrence and finally explicitly says there is also a fundamental right to sexual intimacy => strict scrutiny
Takeaway: you need a secular/non-religious reason to justify the law in question

Question 15

Fundamental Right to Family Living Regulations

Answer 15

When a gov regulates the home it’s more likely to be subject to strict scrutiny

Spatial autonomy: What place the gov is regulating is important

• Home = SS
• In public= we don’t want subject to SS b/c we don’t want you to have freedom and liberty out there

Moore v. City of East Cleveland

City ordinance limited homes to family members based on parenthood. Grandma housed her son and 2 grandkids. Since the boy’s mom or dad didn’t live there, city filed criminal charges against grandma for having an illegal occupant.

Did city ordinance violate 14A of DPC? Yes
SDP ANALYSIS:
(a) Describe the liberty interest: “matters of marriage and family life”

(b) T&H test: Tradition of protecting family is rooted in nation’s history, and this extends to uncles, aunts, cousins and grandparents.

(c) Precedent: Was distinguished
(ii) Decisional autonomy: this court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by DPC
(iii) Spatial autonomy: city is trying to regulate her home (protected interest)

Question 16

Liberty Interest NOT a Fundamental Right: Family Visitation Regulations

Answer 16

Doctrine: Laws regulating a bio-dad’s family visitation when the mother was married to another man during birth is not unconstitutional
(a) Prof: Based on how court defined this extremely narrow liberty interest, will only bring up Michael H on exam if directly applicable

Michael H v. Gerald D
CA statute says married woman’s husband is father by law if they were living together and husband wasn’t sterile.
Issue: Did CA law violate 14A DPC? => No [PLURALITY OPINION]

Description of liberty interest: EXTREMELY Narrow: “right of natural father to assert parental rights over a child born into a woman’s existing marriage of another man.”

(4) Traditions and History test: Protected the marital family above other family situations. Under common law, legitimacy of children of marital family was presumed, similar to CA’s law
(5) Test: Rational Basis Review b/c not fundamental right

Question 17

Liberty Interest NOT a Fundamental Right: Physician-Assisted Suicide

Answer 17

No fundamental right to physician-assisted suicide

(1) Gov therefore has a lot of power to regulate within realm of medical decision
- Exception: There is a fundamental right to refuse treatment

WA v. Glucksberg
WA law prohibited physician-assisted suicide. Ps were group of Doctors in WA and argued yes liberty interest in choice to commit phyisican-assisted suicide. Issue: Does WA law violate 14A? => NO

(1) Description of liberty interest: Whether fundamental right to commit physician assisted suicide
(2) T&H test: nation’s history has almost uniformly rejected existence of this right for physician assisted suicide and most states continue to explicitly reject it in present day
(3) Precedent Distinguished

Exam tip: Glucksberg in a sense stops at T&H test, but on exam keep doing analysis

Question 18

Liberty Interest NOT a Fundamental Right: Sexual Autonomy

Answer 18

Bowers v. Hardwick (Overruled by Lawrence v. Texas and thus is NOT in toolbox)

ISSUE
Whether there is a fundamental right for homosexuals to engage in sodomy (narrow liberty interest defined by gov)

Holding: this is not conduct deeply rooted in T&H or implicit in the concept of ordered liberty => thus applied RBR and held states can criminalize some private sexual conduct b/w consenting adults

Prof: technically this is still true, b/c Lawrence says now the test is strict scrutiny so technically gov can criminalize these kinds of activity if good reason => incest or sex w/ minors

BLACKMUN DISSENT: Example of how to argue SDP
(a) Liberty Interest (Broader): Individuals deciding for themselves whether to engage in particular forms of private, consensual sexual activity

(b) T&H Test: Majority distorted issue and narrowed liberty interest only to sexual orientation but issue is about sexual autonomy and we have a tradition that the constitution embodies a promise that certain private sphere of individual liberty will be kept largely beyond the reach of government.

Question 19

Rational Basis Plus Overview

Answer 19

Way to argue RB+: The gov action seems hostile toward the class
(a) Rational Basis Plus – very fact specific and courts have a lot of discretion for deciding whether to even apply RB+

(2) RB+ happens when a P wins but courts seem to have applied rational basis review (b/c Lee Optical shows how easy it is for gov to win under RBR)

TRIGGER: When a government action is taken based on a bare desire to harm a politically unpopular group
● There is a lack of clarity as to what would triggers rational basis review; no clarity as to the type of evidence required.

● ARGUE for cases classifying based on sexual orientation and non-race, non sex potential classification.

Question 20

Lawrence v. Texas

Answer 20

Court overturns Bowers, but doesn’t recognize homosexual activity as fundamental right. Instead, it applies Rational Basis Plus.

FACTS:
TX statute criminalized homosexual sodomy.

ISSUE did this violate 14A DPC

ANALYSIS
Liberty Interest: Freedom to choose your own personal relationships (Kennedy was intentionally vague)

T&H Test: banning same-sex sexual activity is new (started in 70’s) and not history of banning it. Bowers was wrong about T&H b/c there was actually no history of disapproval of same-sex sodomy, rather the history of anti-sodomy laws targeted sodomy of any sort, rather than specifically same-sex practices
- “T&H is a starting point not a stopping point”

Precedent: says that sex is the most private human conduct and in the most private human place (the home)

(a) Spatial autonomy => activity happens in the home
(b) Decisional autonomy => intimate conduct

Other Considerations: These are case specific and judge specific
(b) Court looks at model penal court and European high court to consider developments re homosexual conduct

Dissent: Upset that majority brings up that they can look at “other considerations.”

Lawrence v. Texas Stare Decisis Analysis

(1) Has legal rule in case become “unworkable” (can judges apply it)?
(a) Court states that the reasoning and holding in Bowers is rejected elsewhere

(2) Has society come to rely on the holding (detrimental reliance)?
(a) Cite Casey: petitioner argued that people had detrimentally relied on Roe v. Wade such that Roe could not be overturned =>I here, there is no such detrimental reliance on Bowers

(3) Has the law changed to make the case obsolete?
(a) Since Bowers we have Casey and a gay rights case decided on an equal protection ground, Romer v. Evans, undercut Bowers, by reinforcing the due process protection for interests such as procreation and family relationships and by rejecting laws that stigmatize LGBTQ persons
(b) Prof: What was held in Bowers doesn’t make sense in light of the interpretation of Romer

Question 21

Roe v. Wade

Answer 21

Stands for proposition that there is a fundamental right to terminate a pregnancy pre-viability and strict scrutiny is applied

FACTS
A Texas law prohibited all abortions except those to save the life of the mother.

ISSUE:
Did this law violated substantive due process (The Due Process clause of the 14A).

HOLDING:
Abortion is a fundamental right and its regulation is subject to strict scrutiny though the right is not absolute.

The Court applied this rational to trimesters and held that in the

(a) 1st trimester the state has no compelling interest,
(b) 2nd trimester the states has a compelling interest in maternal health so that the state may regulate abortions if reasonably related to the woman’s health
(c) 3rd trimester the state has a compelling interest in the maternal health and potential human life so that the state may prohibit or regulate abortions if there is an exception for the woman’s health and these regulations are subject to strict scrutiny

Question 22

Planned Parenthood v. Casey

Answer 22

FACTS:
PA law required:
(1) consent from parent or judge (if minor),
(2) spousal notification,
(3) 24-hour waiting period for all women prior to getting an abortion,
(4) Record-keeping for abortion providers
(5) Woman must certify in writing that her physician had informed her the nature and risks of the procedure, and the availability of state materials about fetuses
(THIS PA LAW HAD AN EXCEPTION FOR A MEDICAL EMERGENCY)

Some provisions that Passed UBT
(a) 24-hour waiting period, informed consent, parental consent, the medical definition of emergency, and some reporting requirements (i.e., collect info of actual patients for medical research- they serve a purpose other than making abortions more difficult.

Provisions that Failed UBT

(a) Spousal Notification (Women subject to abuse have a good reasons for not wanting to tell their husbands about decision to get an abortion)
- Gov argued that this was only a substantial obstacle for such a small percentage of women (around 1%).
- SC said the test is if it place a substantial obstacle in the path of A WOMAN. Bad gov argument to say it only affects a small portion of population and to instead focus on how it doesn’t impact so many people
- Casey say “the proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”

Exam tip: why only spousal notification when 24-hour period imposes can also make it more difficult for mom to get to abortion (miss work, traveling costs, child care, etc)

Question 23

Casey Stare Decisis Analysis

Answer 23

(1) Has legal rule in case become “unworkable” (can judges apply it)?
(i) No. Plurality says its workable.

(2) Has society come to rely on the holding (detrimental reliance)?
(i) Yes. Reliance on Roe had shaped the reproductive attitudes of nation for nearly 20 years; moreover, women had reasonably relied on Roe’s continued force
(ii) People have organized intimate relationships and defined their place in society on the basis of availability of abortion.

(3) Has the law changed to make the case obsolete?
(i) No changes in Constitutional law have left Roe v. Wade to be a sole survivor of obsolete Constitutional thinking.

(4) Have facts changed?
(i) Viability timeline has changed and dangers of abortion have changed
(ii) Although certain medical advances had called into question the trimester approach, viability remained a valid point for government intervention

Question 24

Whole Women’s Health v. Hellerstedt

Answer 24

FACTS:
Whole Women’s Health: Texas law required
(1) that doctor performing the procedure have admitting privileges at a hospital within 30 miles and
(2) that standards for abortion clinics must match those of “ambulatory surgical centers.” (Ex: how wide the hallways had to be)

ISSUE:
Do the provisions of this law constitute an undue burden under Casey?

HOLDING:
Yes. Each law goes beyond “regulation,” imposing substantial obstacles to abortion access before viability without conferring a medical benefit to justify them

1) Admitting Privileges: Hospitals condition admitting privileges on reaching a certain # of admissions a year. However, abortions are so safe that dr admit so few patients and so it’s extremely difficult for a dr to get admitting privileges.
(a) TX even admitted that there was no evidence on record of this new requirement helping a woman obtain better treatment
(b) Thus ½ of TX abortion clinics closed (from 40 to 20), and would greatly increase the distances women would need to travel to get abortions.

2) Match ASC: No evidence of better care if an abortion was done at an ASC vs. at the old licensed facility and it would be very expensive for an abortion facility to match an ASC requirements that a lot would close.
(a) Further reduce the # of abortion facilities and these remaining facilities would not be able to meet the demand of women in the state seeking an abortion

Question 25

Casey Undue Burden Test

Answer 25

Casey reaffirmed a woman’s right to terminate a pregnancy pre-viability (and after viability as state can prohibit abortion), but now the pre-viability test is the UBT:

Does a state regulation have the effect of placing a substantial obstacle (or “undue burden”) in the path of a woman seeking an abortion of a nonviable fetus?

Question 26

What is the Standard of Review for the Interest Asserted

Answer 26

Non-Fundamental Liberty Interest => Rational Basis Review

Fundamental Right => Strict Scrutiny

Exception: SoR when law infringes fundamental right to terminate a pregnancy pre-viability is NOT SS, use UNDUE BURDEN TEST

Question 27

Rational Basis Test

Answer 27

END (Purpose): Permissible as long as the court can conceive ANY goal not prohibited by the constitution

MEANS (Law): Permissible as long as “rational relationship” to the purpose (Doesn’t have to be ACTUAL) goal

Question 28

Strict Scrutiny Test

Answer 28

END (Purpose): Must be COMPELLING goal not prohibited by the Constitution

MEANS (Law): Only permissible if “necessary” (least burdensome) way to achieve purpose

Question 29

Non-Formulaic Considerations for Arguing that a Non-Fundamental Liberty Interest Should be a Fundamental Right

Answer 29

1) P and D will argue how the liberty interest should be described (Fundamental or Not)
2) Apply the History & Traditions test (Palko)
3) P: T&H test is a starting point not a stopping point, D: will agree based on Lawrence v. Texas/ Obergefell
4) P and D will argue that court should follow/distinguish precedent based on decisional autonomy or spatial autonomy
5) P will argue that the court can rely on other considerations (Justice Kennedy in Lawrence/ Obergefell)

Question 30

Who can Identifying new fundamental right

Answer 30

Court has discretion over which description of asserted interest to accept. Considers:

• Palko test
• Precedent

Dissenting View:
- Consider ONLY Palko test, and Court must adopt narrow description of Asserted Interest