Constitutional Law: Fundamental Rights And Substantive Due Process

Front 1

Constitution protects certain unenumerated fundamental rights as a substantive component of liberty protected by DP Clauses of 14A (states and localities) and 5A (federal government).

Equal protection often serves as basis for protecting many of these fundamental rights. Ask whether right is deeply rooted in nation's tradition.

Back 1

SC often (not always) reviews denial of rights under following framework:

1) Fundamental right: strict
2) Non-fundamental right: rational

Front 2

Is it DP and/or EP protection?

Back 2

Denying everyone a fundamental right raises DP problem.

Denying some but not others a fundamental right also raises EP problem.

Front 3

**Strict scrutiny:
marriage; procreation; contraception; custody/care/upbringing of children; keep extended family together; interstate travel; vote

**Undue burden: abortion

Back 3

Rational basis:
economic rights; physician-assisted suicide; education

Unspecified:
Private, consensual adult sexual intimacy; refuse medical treatment; bear arms

Front 4

Marriage & Divorce

Back 4

Substantial interference by state with right to marry is necessary to trigger strict scrutiny

Front 5

Contraception

Back 5

Ban on distrib and use of contraceptives, or limiting sale to pharmacist, is invalid

Katzenburg v.

Front 6

Parental Rights

Back 6

Includes custody, care, upbringing of children

EX: state may not require public school education or education in English

Front 7

Keep extended family together

Back 7

EX: city zoning may not prohibit extended family from living in a single household

Front 8

Abortion

Back 8

Previability: state may regulate but not prohibit abortions to protect the mother's health or life of the fetus, so long as regulation doesn't impose an undue burden on ability to obtain abortion

Post-viability: state may prohibit abortions unless necessary to protect mother's life or health

Front 9

Abortion Restrictions

Undue Burden:
- requiring spousal consent or notification
- requiring extensive recordkeeping and reporting of abortions that is not directed at preserving maternal health or does not sufficiently protect patient privacy

Back 9

Not undue burden:
- requiring licensed physician
- requiring informed consent
-requiring 24 hr waiting period after informed consent
- requiring parental consent for minor as long as judicial bypass available
- banning 'partial birth' abortions
- not funding abortions

Front 10

Private Consensual Adult Sexual Intimacy

Back 10

Criminal ban on same-sex sodomy is not okay

Front 11

Refuse Medical Treatment

Back 11

Competent adult may refuse lifesaving treatment, but state may require clear/convincing evidence of individual's wish and may prevent family members from terminating treatment Cruzan

No right to physican-assisted suicide

State may compel vaccines against contagious diseases