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Con Law > Substantive due process/ Noneconomic fundamental rights > Flashcards

Substantive due process/ Noneconomic fundamental rights Flashcards

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1
Q

Meyer v. Nebraska

A

can’t prohibit foreign language teaching: interferes w/ fundamental right to pursue a calling

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2
Q

Pierce v. Society of Sisters

A

can’t require kids to go to public school: interferes w/ parents’ rights to direct upbringing of their kids

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3
Q

Why are these modern cases substantive rights and not Lochner?

A

b/c right to K is not deserving of special judicial solicitude

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4
Q

Griswold v. Connecticut

A

right to privacy, personal autonomy, contraceptives, directing marital relationships

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5
Q

Where are unenumerated, substantive due process rights found?

A 
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
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6
Q

What does the 9th Amend do?

A

Rights retained by people. Nontextual rights

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7
Q

Eisenstadt v. Baird

A

discrimination between married and unmarried people under Equal Protection Clause. Right to privacy in bedroom=personal autonomy

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8
Q

Roe v. Wade

A

case hold fundamental right to abortion as a matter of personal autonomy

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9
Q

Why did Roe have standing?

A

1 of 2 exceptions to mootness: capable of repetition yet evading review

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10
Q

Why is the right to abortion fundamental?

A

ct left somewhat ambiguous. It is important and grounded in history, tradition. Privacy, autonomy, etc.

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11
Q

What are the state’s interest in abortion cases?

A

State has compelling interest in the life and health of women and of fetuses.

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12
Q

State interest 1st trimester

A

state cannot regulate. Decision left to woman and physician

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13
Q

State interest 2nd trimester

A

regulation in interest of protecting women’s health

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14
Q

State interest 3rd trimester

A

state may proscribe abortion w/ health/ life exception

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15
Q

fundamental right analysis

A
  1. is there a right ?
    a. deeply rooted in ordered scheme of liberty or history and tradition
  2. is the law const. via appropriate means-ends analysis?
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16
Q

Webster v. Reproductive Health Services

A

upheld state law prohibiting govt funding for abortion

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17
Q

Planned Parenthood v. Casey

A

changed Roe’s trimester framework

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18
Q

stare decisis

A

rule can only be overturned when certain factors are present

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19
Q

factors for overturning rule

A
  1. rule unworkable/ judicially unmanageable
  2. no reliance
  3. evolution of legal principle
  4. significant change in facts
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20
Q

Casey doctrinal framework

A

pre-viability: does it place an undue burden on the women’s right to terminate?

post-viability: same as Roe

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21
Q

What is the definition of undue burden for purposes of abortion?

A

regulation that has the purpose or effect of placing a substantial obstacle in the way of a woman’s choice to terminate

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22
Q

government’s legitimate interests in abortion cases

A

life and health of women

life of fetuses

23
Q

What provisions are ok for states to impose in regards to abortion?

A

provision information
provider reporting
parental consent w/ judicial bypass
refusal of govt funds

24
Q

What provisions are NOT ok for states to impose in regards to abortion?

A

spousal notification–> domestic violence

waiting period

25
Q

Why can govt refuse funding for abortion?

A

abortion is a negative liberty, not a positive one

26
Q

Maher v. Roe

A

case: govt doesn’t have to fund abortions

27
Q

Harris v. McRae

A

case: govt doesn’t have to fund abortions, even if medically necessary except for cases of rape or incest

28
Q

Rust v. Sullivan

A

it is ok for govt to prohibit funded health care provides from counseling abortion as a family planning method

29
Q

What is the Constitutional basis of the abortion right

A

due process contains substantive component (14th Amed)

30
Q

When can govt regulate abortion ?

A

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

31
Q

Bowers v. Hardwick

A

upheld state anti-homosexual sodomy statute

32
Q

Why did the ct. uphold the law in Bowers?

A

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

33
Q

What did the ct in Bowers reject as insufficient to provide a rational basis for legal analysis?

A

morality alone

34
Q

Lawrence v. TX

A

overturned Bowers

35
Q

What substantive right did Lawrence v. TX uphold?

A

right of adults to engage in consenting, non-commercial, private sexual activity regardless of marital status

36
Q

Is the right in Lawrence “fundamental?”

A

Probably, but ambiguous

It is an element of human dignity and equality

37
Q

What standard of scrutiny did the ct apply in Lawrence?

A

unclear what standard applied b/c unclear if right was fundamental. Ct. says there is no “legitimate” govt interest=rational basis review

38
Q

What standard of scrutiny SHOULD the ct have applied in Lawrence?

A

if the right were fundamental= scrict scrutiny

39
Q

Loving v. VA

A

case invalidated ban on interracial marriage. Freedom to marry as a fundamental part of the due process pursuit of happiness

40
Q

Zablocki

A

case invalidated the judicial permission requirement for child support obligors to marry

41
Q

Why did the ct. invalidate the judicial requirement for child support obligors to marry in Zablocki?

A

in this case the means were not narrowly tailored to the state interest

42
Q

Turner case

A

case invalidated the prohibition of prisoner’s right to marry

43
Q

Baker v. Nelson

A

in 1971 ct failure to recognize homosexual right to marry for lack of a substantial federal question

44
Q

What did DOMA do?

A

blanket legislation that defined the words “spouse” and “marriage” in all Acts of Congress

45
Q

What harm did Windsor seek redress in Windsor v. US

A

tax for inheriting her wife’s property

46
Q

Windsor v. US

A

invalidated DOMA

47
Q

Why did the ct. conclude that DOMA was unconstitutional?

A
  1. equal protection
  2. born of animosity
  3. no state interest
48
Q

Did the ct consider same sex marriage a fundamental right in Windsor?

A

unclear. The ct mentioned the liberty to be who someone wants to be and the dignity of personal choice

49
Q

What level of scrutiny was applied in Windsor?

A

unclear. Balancing test like Lawrence

50
Q

What are Windsor’s implications?

A

case held: federalism==states may define who may marry, but state needs legitimate interest to justify the govt’s intrusion on the right

51
Q

Bostic v. Rainey

A

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

52
Q

What level of scrutiny did the Dist. Ct. apply in Bostic?

A

strict: compelling interest not narrowly tailored

53
Q

What did the Dist Ct say about VA’s alleged interest in defining marriage?

A

tradition–not compelling or legitimate
federalism–fed const. rights trumps state law
protecting children–just silly

Con Law (8 decks)

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