Substantive Due Process Doctrinal Tools

Question 1

The Right to Procreate

Answer 1

The right to procreate is a fundamental right and is therefore, met under strict scrutiny.

See Buck, Skinner

Question 2

Right to Purchase and Use Contraceptives

Answer 2

Apply strict scrutiny to laws that limit ones’ right to make decisions regarding their body. (AUTONOMY)

Question 3

Griswold v. Connecticut, U.S. (1965)

Answer 3

SC held that a Connecticut law prohibiting a married couple from using contraceptives violates SDP.

Majority relied on a penumbra & emanation analysis which is wrong.

Today, we rely on the concurrence, who used the SDP approach.

The const. does not create a fundamental right to use contraceptives, rather, it PROHIBITS the legislature from infringing on a citizens right to use contraceptives.

Question 4

Marriage

Answer 4

Apply Strict Scrutiny to laws limiting the right to marry.

See Loving v. Virginia (SC held that a VA law banning whites from marrying non-whites, violates the DPC.)

Freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Question 5

The Right to Custody of One’s Children

Answer 5

Michael H. v. Gerald D. (1989) (Plurality)

The unmarried natural father failed to have parental right because he was unable to pass the Palko test. Therefore, Ct did not apply SS but RBT. .

The Palko Tradition in history test is a starting point not a stopping point.

Liberty means more than freedom from physical restraint.

Question 6

Right to Keep Family Together

Answer 6

Moore v. City of East Cleveland, Ohio (U.S.) 1977

SC held that a law not allowing a grandchild to reside with grandmother violates the DPC.

Apply SS to regulations that try to impact what is a family.

Question 7

Right of Parents to Control Upbringing of their Children

Answer 7

Parents have a fundamental right to make parenting decisions.

See Meyer v. Nebraska, U.S. (1923). (law which made it unlawful to teach German was found to violate the SDP

Question 8

Right to Physician-Assisted Death

Answer 8

Washington v. Glucksberg, U.S. (1997)

The right to assistance in committing suicide is NOT a fundamental right. It is not deeply rooted in nation’s history and traditions.

This different than withdrawing life support.

Apply RBT to assisted suicide, since it is not a fundamental right.

Question 9

Child Support

Answer 9

Zablocki v. Redhail

Apply strict scrutiny to law preventing those who pay child support from getting married. (marriage autonomy)

Question 10

3 Steps to apply for substantive due process analyses

Answer 10

1. Find whether the government regulation has compelling purpose.
2. Is the government regulation narrowly tailored to carry out that purpose?
3. Is the regulation infringing upon a fundamental right?

How to tell if the right is fundamental:

1. Are there previous cases that say the right is fundamental?
2. Palko Test (Traditions / History Test)

Question 11

Bowers v. Hardwick, U.S. (1986)

Answer 11

not good law.

Here, the court did not apply strict scrutiny to a law which banned gay sex.

Also, they said banning gay sex was a legitimate gov’t purpose based on moral and religious reasons, this is no longer a legit. purpose.

Overturned by…

Question 12

Sexual Autonomy

Answer 12

Lawrence v. Texas, U.S. (2003)

Court struck down a law which made it a crime for 2 persons to engage in sexual conduct.

Court does not say that sexual autonomy is a fundamental right.

So, they applied RBT, but still struck it down, this is known as RBT+.

Question 13

RBT+

Answer 13

Court applies RBT+, when the right is not found to be fundamental but still strike down the law anyway.

Court will have concluded that the only purpose of the law is to harm a politically powerless group.

Question 14

Obergefell v. Hodges, U.S. (2015)

Answer 14

The court examined whether a law banning gay marriage violates the 14th amendment DPC.

The court applied RBT+ and found that the law infringes upon human autonomy.

NOTE, marriage autonomy is a fundamental right, but here they applied RBT+.

Question 15

Reproductive Autonomy

Answer 15

Roe v. Wade, U.S. (1973)

The issue is whether laws banning abortion violate the 14th amendment DPC.

The court applied SS to laws banning abortion pre-viability.

They created a trimester test, wherein, the compelling interest varied based on the trimester.

APPLY SS TO ABORTION LAWS.

This case was modified by…

Question 16

Planned Parenthood v. Casey, U.S. (1992)

Answer 16

Got rid of Roe’s trimester analysis.

Created an undue burden standard. An undue burden exists if the laws purpose or effect places a substantial obstacle in path of women seeking abortion before fetus is viable.

Government can regulate abortion so long as it is not an undue burden.

This standard is unique for abortions.

Also, created a pre-viability and post-viability framework.

They also set forth an analysis for overturning precedent:

U.P.O.F.

 Has legal rule in case become "Unworkable?"
 Has society come to rely on Prior holding?
 Has law changed to make the case Obsolete?
 Have Facts changed?

Question 17

Pre-viability and Post-viability Framework

Answer 17

Abortion Viability Framework Created by Planned Parenthood

Pre-Viability
State has a compelling interest in maternal health and potential human life and may regulate abortions starting at conception if not an “undue burden.”

Post-Viability
State has compelling interest in maternal health and potential human life and prohibits abortions notwithstanding exceptions made for maternal life/health as long as not an “undue burden.”