Substantive due process/ Noneconomic fundamental rights Flashcards
Meyer v. Nebraska
can’t prohibit foreign language teaching: interferes w/ fundamental right to pursue a calling
Pierce v. Society of Sisters
can’t require kids to go to public school: interferes w/ parents’ rights to direct upbringing of their kids
Why are these modern cases substantive rights and not Lochner?
b/c right to K is not deserving of special judicial solicitude
Griswold v. Connecticut
right to privacy, personal autonomy, contraceptives, directing marital relationships
Where are unenumerated, substantive due process rights found?
in the penumbras of the const. 1st right of association 3rd no interference on property 4th against search & seisure 5th against self incrimination 9th other rights
What does the 9th Amend do?
Rights retained by people. Nontextual rights
Eisenstadt v. Baird
discrimination between married and unmarried people under Equal Protection Clause. Right to privacy in bedroom=personal autonomy
Roe v. Wade
case hold fundamental right to abortion as a matter of personal autonomy
Why did Roe have standing?
1 of 2 exceptions to mootness: capable of repetition yet evading review
Why is the right to abortion fundamental?
ct left somewhat ambiguous. It is important and grounded in history, tradition. Privacy, autonomy, etc.
What are the state’s interest in abortion cases?
State has compelling interest in the life and health of women and of fetuses.
State interest 1st trimester
state cannot regulate. Decision left to woman and physician
State interest 2nd trimester
regulation in interest of protecting women’s health
State interest 3rd trimester
state may proscribe abortion w/ health/ life exception
fundamental right analysis
- is there a right ?
a. deeply rooted in ordered scheme of liberty or history and tradition - is the law const. via appropriate means-ends analysis?
Webster v. Reproductive Health Services
upheld state law prohibiting govt funding for abortion
Planned Parenthood v. Casey
changed Roe’s trimester framework
stare decisis
rule can only be overturned when certain factors are present
factors for overturning rule
- rule unworkable/ judicially unmanageable
- no reliance
- evolution of legal principle
- significant change in facts
Casey doctrinal framework
pre-viability: does it place an undue burden on the women’s right to terminate?
post-viability: same as Roe
What is the definition of undue burden for purposes of abortion?
regulation that has the purpose or effect of placing a substantial obstacle in the way of a woman’s choice to terminate
government’s legitimate interests in abortion cases
life and health of women
life of fetuses
What provisions are ok for states to impose in regards to abortion?
provision information
provider reporting
parental consent w/ judicial bypass
refusal of govt funds
What provisions are NOT ok for states to impose in regards to abortion?
spousal notification–> domestic violence
waiting period
Why can govt refuse funding for abortion?
abortion is a negative liberty, not a positive one
Maher v. Roe
case: govt doesn’t have to fund abortions
Harris v. McRae
case: govt doesn’t have to fund abortions, even if medically necessary except for cases of rape or incest
Rust v. Sullivan
it is ok for govt to prohibit funded health care provides from counseling abortion as a family planning method
What is the Constitutional basis of the abortion right
due process contains substantive component (14th Amed)
When can govt regulate abortion ?
as long as there is some rational connection to promoting a legitimate state interest, as long as the regulation does not place an undue burden
Bowers v. Hardwick
upheld state anti-homosexual sodomy statute
Why did the ct. uphold the law in Bowers?
ct decided there was no “fundamental right” for homosexuals to engage in sodomy b/c no connection to family, marriage, procreation, and not deeply rooted in scheme of ordered liberty
What did the ct in Bowers reject as insufficient to provide a rational basis for legal analysis?
morality alone
Lawrence v. TX
overturned Bowers
What substantive right did Lawrence v. TX uphold?
right of adults to engage in consenting, non-commercial, private sexual activity regardless of marital status
Is the right in Lawrence “fundamental?”
Probably, but ambiguous
It is an element of human dignity and equality
What standard of scrutiny did the ct apply in Lawrence?
unclear what standard applied b/c unclear if right was fundamental. Ct. says there is no “legitimate” govt interest=rational basis review
What standard of scrutiny SHOULD the ct have applied in Lawrence?
if the right were fundamental= scrict scrutiny
Loving v. VA
case invalidated ban on interracial marriage. Freedom to marry as a fundamental part of the due process pursuit of happiness
Zablocki
case invalidated the judicial permission requirement for child support obligors to marry
Why did the ct. invalidate the judicial requirement for child support obligors to marry in Zablocki?
in this case the means were not narrowly tailored to the state interest
Turner case
case invalidated the prohibition of prisoner’s right to marry
Baker v. Nelson
in 1971 ct failure to recognize homosexual right to marry for lack of a substantial federal question
What did DOMA do?
blanket legislation that defined the words “spouse” and “marriage” in all Acts of Congress
What harm did Windsor seek redress in Windsor v. US
tax for inheriting her wife’s property
Windsor v. US
invalidated DOMA
Why did the ct. conclude that DOMA was unconstitutional?
- equal protection
- born of animosity
- no state interest
Did the ct consider same sex marriage a fundamental right in Windsor?
unclear. The ct mentioned the liberty to be who someone wants to be and the dignity of personal choice
What level of scrutiny was applied in Windsor?
unclear. Balancing test like Lawrence
What are Windsor’s implications?
case held: federalism==states may define who may marry, but state needs legitimate interest to justify the govt’s intrusion on the right
Bostic v. Rainey
District Ct. held that the right to marry is “fundamental” as a matter of due process. For Const. purposes there is no meaningful difference btwn same sex and opposite sex marriage
What level of scrutiny did the Dist. Ct. apply in Bostic?
strict: compelling interest not narrowly tailored
What did the Dist Ct say about VA’s alleged interest in defining marriage?
tradition–not compelling or legitimate
federalism–fed const. rights trumps state law
protecting children–just silly
