Unenumerated Rights

Question 1

Procreation

Answer 1

Fundamental Right–>Strict Scrutiny

Question 2

Right to Privacy

Answer 2

Penumbras of the bill of rights create a fundamental right to privacy –> strict scrutiny

Question 3

Roe v. Wade

Answer 3

Liberty interest protected by 14th Amend SDP covers abortion. Fundamental….but not absolute. Subject to strict scrutiny

Three Part Framework:
1st Tri: Mother has absolute right (no compelling state int)

2nd Tri: state compelling int justify narrowly tailored leg to protect the mother

3rd Tri: State has interest in potential human life, can regulate abortion

Question 4

Planned Parenthood v. Casey

Answer 4

Abandoned Strict Scrutiny…moved to “undue burden” balancing test:

State has a legit interest beginning from conception and can regulate throughout the preg to express interest in life as long as the regulations don’t impose an “undue burden” on a woman’s right to terminate up to viability

Question 5

PP v. Casey “Undue Burden” Definition

Answer 5

A state measure which has either the PURPOSE or EFFECT of placing a substantial obstacle on a woman’s right to terminate a pregnancy.

Question 6

Evolution of Scrutiny in Abortion Cases

Answer 6

Roe –> Strict
Casey –> Undue Burden
Stenberg –> applied the undue burden test
Carhart –> reference to undue burden but inclusion of rational basis language (weakening of undue burden)/hybrid approach

Question 7

Right to Die

Answer 7

No Fundamental Right –> Rational Basis

Question 8

Right to Marry

Answer 8

Fundamental –> Strict Scrutiny (See Obergefell)

Question 9

Homosexuality

Answer 9

Not Fundamental –> Rational Basis

Focus is on personal and private life (recognizes a constitutional right, but not a fundamental right)

Question 10

Care of Children by Parents

Answer 10

Fundamental Right –> Strict Scrutiny