Substantive Due Process Flashcards
Fundamental Right Standard of Review
Strict Scrutiny
Other Rights - Standard of Review
Rational Basis
Strict Scrutiny
Law is necessary to achieve a compelling government purpose. BOP on Gov.
Intermediate Scrutiny
Law is substantially related to an important gov purpose
Rational Basis
Law is rationally related to a legitimate Gove Purpose
BOP on challenger
Fundamental Rights
Right to Travel (interstate)
Right to Vote
Right to Privacy
Restriction on voting bc of residency
Rational Basis Review
Voting: Length of Residency
Person may be required to be a resident of state or city for short period prior to an election in order to vote (3 months and one year are too long…50 days OK)
Poll Taxes
Payment of a fee in order to vote in election is Prohibited
Voting: Felons
State may prohibit a felon from voting
Privacy: Marriage
Fundamental right to marry
Privacy: Contraceptives
Married and unmarried person can use contraceptives
Privacy: Abortion
Pre-viability: Gov can’t prohibit abortion prior to viabiliyt. Can only regulate w/ no undue burden (i.e. protecting mother’s health and life of the fetus.)
Post-Viability: State can regulate and even prohibit abortion.
Privacy - Abortion: Undue Burden
Notifying spouse about abortion is undue burden and can’t be compelled
Privacy - Abortion: no undue burden
24 hour waiting period
Licensed Physicians to perform procedure
Parental consent or notice for minors (depending on maturity.)
Privacy - Abortion: Gov Funding
Government has no obligation to pay for abortions
Privacy: Family relations
Related persons have a fundamental right to live together in a single household
Privacy: Obscene Material
Right to possess obscene material in the privacy of one’s home. State can restrict the sale, purchase, receipt, or distribution.
Child Porn is always illegal.
Privacy: Medical Treatment
Person may not be forced to undergo medical procedures including lifesaving measures.
State CAN ban assisted suicide.
Second Amendment
Right to bear arms is not unlimited…can impose conditions and qualifications on sale, etc.
Privacy - Abortion: State Owned Facility
State may prohibit abortions in a public/state owned facility, even if it is pre-viability.
Privacy: Abortion and persuasion
Statute making it mandatory for doctors to try and persuade a mother not to have an abortion is legal and doesn’t constitute an undue burden
