Substantive due process Flashcards
General rule for level of judicial review
fundamental rights: strict scrutiny (typically private party challenger prevails)
non-fundamental rights: rational basis review (typically gov’t prevails)
Fundamental rights to privacy includes…
marriage procreation contraception consensual adult sodomy parental rights (care, custody, control, education of children) living with extended family adult denial of medical treatment
What’s the standard of review for the right of abortion?
special review standard: undue burden
Rule for right of abortion
- before VIABILITY (survival outside womb w/ medical assistance)
- abortion reg to protect the mother’s health or fetal life must not place an UNDUE BURDEN (substantial obstacle) on the woman’s right to obtain an abortion
- AFTER VIABILITY,
- gov’t may PROHIBIT ALL ABORTIONS,
- UNLESS procedure is NECESSARY TO PROTECT THE WOMAN’S LIFE OR HEALTH
Abortion: what’s an undue burden? what are some examples?
substantial obstacle
examples:
- spousal notification or consent law
- banning all partial-birth abortions
Abortion: what are some examples of things that are NOT undue burdens (substantial obstacles)?
- 24-hour waiting pd
- performance in licensed hospital by licensed physician
- parental notice or consent requirement (AS LONG AS has “bypass procedure”- enable minor to go before judge to authorize abortion w/o parent notice/consent if in best interest of minor)
- partial-birth abortion regulation w/ life exception
Fundamental right to interstate travel: what’s the concern?
lengthy residency waiting periods for governmental benefits
state restrict benefits to ppl w/ residency for certain time
Is there a fundamental right to international travel?
no
Fundamental right to vote (invalid and disfavored)
invalid:
- poll taxes
- property ownership requirements
disfavored:
- ballot qualifications
Fundamental right to vote: constitutional qualifications
residency, age, citizenship
if not, must pass strict scrutiny
Fundamental right to vote: rule for establishing voting districts (federal elections vs. state and local elections) (special standard of review)
federal elections:
court will apply 1 person 1 vote standard of review with mathematical exactitude
state and local elections:
more relaxed standard: no UNJUSTIFIABLY LARGE DISPARITIES in the number of voters may exist among the districts
What level of review for regulation of economic activities?
rational basis review
Examples of regulations of economic activities
regulating business licenses or labor practices
police for terminating public employees
administering public benefits
What’s the fate for regulations of economic activities?
court will uphold conceivably appropriate regulations to serve conceivably legitimate gov’t interests
typically will survive unless plaintiff proves entirely irrational and arbitrary
Fundamental rights (umbrellas)
privacy
interstate travel
vote
