Con Law 8

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iii) Revival of Economic Substantive DP? Limits on Punitive Damages --- FROM CHRIS CON LAW OUTLINE

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What is the 3 part punitive damage test from BMW:

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(i) 1) degree of reprehensibility: harm was entirely economic; did not affect car’s safety or performance (ii) 2) Ratio of b/w compensatory and punitive damages: $2 million award is 500x harm done to P 1. No strict guideline, however it rarely exceeds 10:1 (iii) 3) Awards given under municipal sanctions: max fine in AL was $2,000 (iv) Final analysis: punitive damages grossly excessive; punishing BMW based on its nationwide conduct rather than conduct against this particular P or even this state

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How was the BMW 3 part test applied in State Farm v Campbell? Facts: In a civil case, SF is covering C based on an auto accident he had. SF refuses to accept settlement claim, and takes C’s case to court, agreeing to cover any damages awarded. C found liable for $185k and SF refuses to pay. C sues SF, SF charged with $145million in punitive damages

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(i) 1) degree of reprehensibility: 1. economic v. personal injury: economic here 2. repeated v. isolated conduct: no proof that this was recurring activity on part of SF 3. victim’s financial vulnerability: C’s damages jumped from $25k to $185k 4. accidental or intentional: SF deliberately promised to cover trial damages, and backed out (ii) 2) Actual harm v. Punitive damages award 1. UT trying to punish SF for statewide activities (similar to BMW); can only address injuries resulting from C’s accident 2. Single digit ratio is more or less the norm; here it was 145:1 (iii) 3) Municipal awards: max fine against SF would be $10k

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Framework for Analysis (Chemerinsky’s four guidelines) for Substantive Due Process: When a right is un-enumerated, use this process to see if it applies under DP

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(1) Is this a Fundamental Right? (a) If so, then strict scrutiny will apply (b) If no, only rational basis is needed (c) Decision rests primarily on precedent (courts are walking in the dark for the most part) (d) Originalist v. non originalist debate: are fundamental rights limited to enumerated rights? (2) Is the right infringed by the State law? (a) Gov must place a direct and substantial burden on the right (i.e. suppose there’s a fundamental right to marriage, a marriage tax penalty can be regarded as a direct burden or not) (3) Are the ends justified? (a) Are the ends sufficiently important? (b) What was the law’s actual purpose? (i) Fundamental right needs compelling purpose (ii) Non-fundamental: legitimate purpose 1. Very easy to satisfy; in West Coast Hotel, court even came up with its own purpose (lack of min wage laws will negatively affect society/economy) (4) Are the means sufficiently related to the ends? (a) Strict scrutiny  necessary (b) Rational basis  reasonable

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What did Buck v Bell (1927, Holmes) have to say about the fundamental right to procreate? – Mentally retarded female is being forced by State superintendent to get sterilized

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(i) Ct: right to procreate is NOT fundamental; therefore rational basis used 1. Means are sufficient to justify ends: want to prevent birth of mentally challenged children; also don’t want to give mentally challenged special treatment at costs of public welfare (ii) Note: This case was never explicitly overruled, or Holmes opinion repudiated. However, Skinner v. OK implicitly overrules by making procreation a fundamental right

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How did Skinner v OK (1942, Douglas) have to say about the fundamental right to procreate? – OK law allows sterilization of persons convicted of 2+ felonies or “moral turpitude”

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(i) Ct: fundamental right to procreate does exist! Having children is important. Strict scrutiny will be used (ii) Is there sufficient justification? No evidence to show moral correlation b/w criminals and offspring. 1. Also, law does not indicate the degree of the crimes in question (iii) Are the means sufficiently related to the ends? 1. No correlation means sterilization will have no effect on curbing crime 2. Sterilization can have damages on its own: a. Disproportionate births among racial groups b. Operation cannot be reversed

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Can involuntary sterilization ever be justified? What are the major questions?

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(i) Ex. CA law stating people with 2+ kids lose welfare benefits 1. Not a direct can, but gives incentives 2. Counter: is this such a burden that it turns into a ban? 3. Assuming it is an infringement, is there justification? a. Is saving money a compelling state purpose?

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What is the difference between Equal Protection v. Due Process

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(i) EP: treating all similarly situated individuals similarly (ii) DP: cannot deprive fundamental rights w/o legitimate reason/purpose (iii) Example with both: Law that forbids right to abortion for non-whites

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What did Griswold v CT (1965, Douglas) have to say about the right to use contraceptives? – CT law imposes fines and imprisonment on anyone using anything to prevent conception, and to anyone who helps procure such materials. G runs an office, asserting right for other people

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(i) Douglas (majority) opinion: “penumbras” as inherent rights within the constitution 1. explicit provisions of BoR (no search w/o warrant, free speech, no quartering, all 3rd amendment rights) indicate a right to privacy a. Contraception applies under privacy, so it’s a right! b. Marriage carries a right to privacy 2. Why use 3rd amendment instead of “liberty” under DP? a. Avoid Lochner era decisions; however, this case is usually seen as a substantive DP case (ii) Goldberg/Brennan concurrence: 9th amendment: rights are not required to be enumerated  framers wanted flexibility 1. Could argument that 9th amendment states “the people” means laws still must be added through legislature 2. However, court is in the best position to determine rights based on constitution (Marbury v. Madison) (iii) Harlan concurrence: this is substantive DP violation! (iv) White concurrence: Law itself fails in purpose to prevent extra marital affairs; it only addresses married couples!

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What did Eisenstad v Baird (1972, Brennan) have to say about the right to use contraceptives? – B convicted under MA law of showing contraceptives during a lecture and giving vaginal foam to a female student

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(i) Three tiered law 1. married couples: use contraceptives only w/ prescription 2. single persons cannot use contraceptives period 3. exceptions for prevention of disease (ii) Ct: everyone has a right to privacy, not just married couples 1. Ct extends Griswold to include privacy rights for individuals (iii) Note: This is a substantive DP case more than EP

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What did Roe v Wade (1973, Blackmun) say about the right to abortion?– TX law denies abortion except in cases to save the life of the mother

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(a) Main ruling: ct will recognize women’s fundamental right to abortion (i) This is dissimilar from Griswold, in that Blackmun applies right to abortion directly under DP (Griswold linked contraceptives to right to privacy under 3rd amendment) (ii) Primary reasoning: pregnancy is a very individualized process involving the mother (b) However, court maintains that at some point, other rights supercede right to abortion (based on compelling interest theory) (i) Court upholds trimester system (current medical knowledge sets end of the first trimester as the compelling point) 1. From this point, states can judge compelling point accordingly (ii) Isn’t the court somehow addressing viability with this system? 1. Court argues that since this is based on current medical knowledge, the court itself even making a viability distinction (c) LEGAL RULE: states don’t have a compelling interest to restrict abortions, unless the fetus has a legit change of survival outside the womb (viability) (d) Applying the 4 part test: (i) What are the state’s interests? 1. Protection of potential life 2. Protection of mother 3. Protection of med field in general (ii) Is the fit b/w law and interests sufficient? 1. Rather than an outright ban, maybe address penalties along the trimester system (e) Other considerations (i) 13th amendment involuntary servitude violation (ii) Federalism: court determines when viability begins and states make their own laws based on that (f) What if there was no fundamental right to abortion, could the court actually force abortion? (i) Similar to Skinner v. OK: just b/c a fundamental right to pro create exists doesn’t mean a fundamental right not to does

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What did this case have to say about Abortion? PP v Casey (1992, O’Connor, Kennedy, Souter) – 5 provisions in PA abortion control act include: 1) woman must be provided info as least 24hrs before procedure, 2) minors need informed consent with judicial bypass, 3) married women need signed statement from spouse, 4) exceptions for medical emergencies. Facts: o A family planning clinic challenged the constitutionality of a Pennsylvania law placing certain restrictions on a woman’s right to obtain an abortion.

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(a) Majority opinion: uphold essentially ruling of Roe (abortions before viability are ok) (i) Roe was bad, but 20 years of reliance require stare decisis (ii) Factors that create excruciating circumstances to overturn? 1. Central Holding unworkable? Think national league of cities and “essential state functions”; CC tests a. only problem is trimester system 2. Anachronism (does Roe conflict with majority of recent cases)? No case directly conflicts Roe 3. Factual premises under original case undermined? a. Modern advances allow safer abortions and easier determination of viability i. This doesn’t effect right to abortion (doesn’t make the pain of child birth any easier), since it occurs before viability 4. Reliance interest: 20 years (iii) Take away trimester system (b) Undue Burden Analysis: if interference question is met, then right is upheld with no inquiry on interests (i) Must be substantial burden enough to prevent or severely hinder exercise of rights (ii) Note, Casey itself doesn’t delve too much into this issue, but sets the standard of review for laws that address abortion (c) Dissent: Lochner era type decision!

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How is Casey Applied to Partial Birth Abortions: Stenberg v Carhart (2000, Breyer) – NB partial birth abortion ban (Intact D&E and D&X), except for saving mother’s life |||| Facts: o An abortion provider filed suit against the State of Nebraska seeking to have a law, which proscribed partial birth abortions, declared unconstitutional.

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(i) Involves D&E, Intact D&E and D&X procedures (ii) Ct: Two reasons why it’s unconstitutional 1. No exception for health of mother, only in case where life is in danger a. Too narrow w/ regard to Casey and Roe 2. Imposes UB on right to abortion a. If Intact D&E and D&X are safer, then law imposes harsher procedure and takes away options b. Distinction b/w various procedures is amorphous (as all three involve pulling the fetus to the cervix in some degree) (iii) O’Connor: If law had just included exception for health relating to all three procedures, it would be okay 1. withholding most common procedures is UB

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How is Casey Applied to Waiting Periods?

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(b) Waiting Periods: Casey – upholds 24 hour waiting period (i) Idea of this as an UB can vary: desire for reflection v. equal access to abortion clinics

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How is Casey Applied to Spousal Consent / Notification: Danforth (1976, Blackmun) – MO law requires written consent of spouse, except with physician’s order for saving mother’s life

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(i) RULE: State cannot delegate power over abortion to a spouse which the state itself does not have (ii) Law provides husband veto power (iii) Casey – strict scrutiny used; court upholds Danforth

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How is Casey Applied to Parental Consent / Notification: Bellotti v Baird (1979, Powell w/ Stewart and Rehnquist) – MA requiring girls < 18 yrs to seek parental consent without judicial bypass Facts: • A Massachusetts law which regulated the access of minors to abortions was challenged as being unconstitutional.

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(i) Ct: 14th amendment does not preclude rights of minors. However, these rights can be altered (ii) RULE: Parental consent laws are OK; with some type of judicial bypass 1. Even for minors, state cannot give parent’s veto power over a minor’s right to abortion

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What are the three focuses/Three variations on the rt to die > focus a & c

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(a) Terminate unwanted medical procedures (b) Commit suicide: generally no right; state laws prohibit this and court would probably say no (c) Assisted suicide

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What did this case say about the Right to refuse unwanted medical treatment – Cruzan (1990, Rehnquist) – Family wants to cut off injured daughters feeding and life support tubes Facts: 1. The parents of a patient who had long been in a vegetative state sought court permission to have their daughter’s life terminated when the hospital in which their daughter was staying refused to discontinue lifesaving treatment without a court order.

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(a) Ct analysis: (i) 1) competent adults have constitutional right to refuse medical treatment (informed consent deeply embedded in CL) 1. 5 justices say this includes feeding tubes/life support (ii) 2) state can require clear and convincing evidence despite this right 1. Is this an undue burden? a. balancing risks of error; error to terminating party results in status quo with possible benefit of medical advances and possible cure. Error to the patient is not susceptible to correction (person is dead) 2. standard is between crim law standards (reasonable doubt and preponderance of evidence) (iii) 3) state can prevent family member from terminating treatment of another member 1. Is there a constitutional difference b/w denying treatment at the start and wanting to stop treatment once its been underway? 2. True indicator of intent is the victim them self

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What did this case say about the right to Assisted Suicide ? WA v Glucksberg – WA law creates accomplice liability for suicide attempts Facts: a. A group of doctors challenged the constitutionality of a Washington ban on physician assisted suicide.

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(i) Ct analysis: 1. Nation’s history and tradition: long standing traditional of physician assisted suicide bans a. However, a look into technology indicates this isn’t the only side to the equation 2. Is there a fundamental right? a. WHEN YOU FIND A RIGHT, DESCRIBE IT VERY PARTICULARLY AND NARROWLY b. Is Cruzan applicable? Court says no; patients here are actively looking for treatment i. Whereas withholding treatment results in death from natural cause, assisted suicide uses unnatural means to produce death 3. Even with no fundamental right, law needs rational basis: preserve human life, integrity of med profession, protect vulnerable groups (ii) O’Connor: would include exception for terminally ill patients; court didn’t need to get into the issue of whether person has right to control circumstances of their death (iii) Breyer: reframe issue as right to die with dignity; laws allow lethal drugs to alleviate pain, and therefore can be seen as a right to abstain from pain (iv) How could you use O’Connor and Breyer’s concurrences to argue for P’s in Raich? 1. Fundamental right to abstain from pain; therefore limiting access to marijuana is unconstitutional

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What did this case say about the right to Assisted Suicide ? Vacco v Quill (1997, Rehnquist) – NY law prohibits physician assisted suicide

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Define: Procedural Due Process

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Procedural Due Process: look at procedures (not the reasons) that gov follows when taking away rights

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Are Procedural and Substantive Due Process Complementary? How?

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i) Procedural and substantive DP are complementary; cannot exist without each other (1) Hard to protect substantive DP without requiring gov to follow procedural DP (2) Likewise, procedural DP doesn’t exists w/o a compelling reason for deprivation

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Mikos 3 step process for procedural DP analysis:

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(1) Show Deprivation (a) More than simply suffering loss (i) Daniels v Williams (1986, Rehnquist) – inmate suffers injury form pillow left on stairs of jail. Argues lack of recovery (sovereign immunity) violates DP 1. RULE: DP clause does NOT apply to deprivations as a result of mere negligence lacking due care a. Requires intent and deliberation 2. Tort recovery compensation is not constitutionally required (b) Emergency situations (i) County of Sacramento v Lewis (1998 Souter) Police hits speeding motorcyclist while going after him in a high speed chase 1. RULE: deprivations must satisfy the “shocks the conscience” test a. Extension of Daniels requirement for deliberation and intent b. “deliberate indifference” cannot apply during emergencies, when authorities don’t have time to think (2) Deprivation of life, liberty, and property (a) Does NOT include affirmative duties (i) DeShaney v Winnebago County (1989, Rehnquist) DSS investigates possible child abuse, but doesn’t take action; father beats child causing permanent injury 1. Ct: State isn’t required to actively protect against life, liberty, and property against private actors 2. Dissent: induced reliance, DSS set itself up as the handler of child abuse cases a. Reliance + inaction = deprivation

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How does this case demonstrate what duMathews v Eldridge (1976, Powell) Does Due Process require that, prior to terminating Social Security disability benefit payments, an evidentiary hearing is necessary?

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(a) Ct 3 interest balancing test: (i) Private interests affected by the action 1. If patient succeeds in claim, he gets retroactive relief. So real benefit is in uninterrupted benefits a. One case where this was deemed crucial (Goldberg); that case is distinguishable b/c it was welfare benefits (financial need necessitates uninterruption) (ii) Margin or additional benefit of more elaborate procedure 1. Health assessments are more precise than welfare analysis 2. Aid from evidentiary hearing is minimal, given that reliance is on the medical reports (iii) Cost to government of the added procedures 1. substantial costs of requiring additional hearings

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How can the matthews ballancing test be applied to Hamdi?

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(i) Significant costs in having to give all wartime detainees a full trial (ii) Also possible giving away of military secrets