Fundamental Rights

Front 1

Griswold v. Connecticut
Concurrence

Back 1

Right to contraception, prenumbra: to find right to privacy.
Harlan (adopted by Roe v. Wade) DPC of 14th, look to tradition and history

Front 2

Roe v. Wade

Back 2

Blackmun Majority- (adopted Harlans Conrnc from Griswold) -Right to privacy broad enough to encompass abortion:
-trimester framwork
1. 1st- no state infringment
2. 2nd can regulate in interst of protecting mother
3. state can regulate in interst of protecting potential life

Front 3

Planned Parenthood v. Casey

Back 3

abandons trimester-framwork
Prior to viability=abort
post-state can regualate
UNDUE BURDEN TEST

Front 4

Stenberg v. Carhart

Back 4

D&X abortoin law struck down b/c did not include provisoin for health of mother.
Kennedy split from O'Conner and Souter they have different ideas of what constitutes undue burden

Front 5

Bowers . Hardwick

Back 5

GA law crimilizing sodomy-majority only applied law to homo's and looked at history to find there was no fundamental right to enage in homo sex
OVERRULLED by lawrence

Front 6

Lawrence v. Texas

Back 6

(Kennedy) Conviction of gay man in TX for engaging in “deviant sexual intercourse” overturned. Fundamental principles of liberty (not the Constitution) protect the individual from state intrusion into the home. **Embraces Blackman’s dissent in Bowers
i. Liberty should be defined more broadly (opinion talks about liberty not privacy)
ii. Unclear reasoning: Majority ruled that either (1) there is a fundamental right involved and strict scrutiny applies or (2) there is no fundamental right conclusion and instead the law is so irrational that it doesn’t even pass rational basis review (simple morality insufficient as gov interest)
iii. History most sodemy laws not directed at homo’s
iv. Reliance says no one has relied on laws
1. Dissent: says states relied on laws:
2. Know that there is a difference between states relying v. persons relying.
v. Don’t know what this case is based on:

Front 7

Cruzan v, Director

Back 7

Upheld Missouri’s “clear and convincing evidence” standard legitimately related to the state’s interest in protecting life.
i. Assumed person has right to die by refusing water and food: (this affirmed in Washington) O’Conners concurrence + 4 dissent:
ii. When intention of person is unknown state has room of imposing a higher standard. (interest in life v. death)

Front 8

Washington v. Glucksberg

Back 8

upheld WA law criminalizing causing or permitting suicide (but allowed removal of treatment at patient’s request). Looked to long history of criminalizing suicide. Explicitly recognized that substantive due process rights exist. Why certain rights are protected under substantive DP:
i. Fundamental rights must be objectively deeply rooted in this nation’s history and tradition and implicit in the concept of ordered liberty
ii. Must be a careful description of the asserted fundamental interest. Can’t be vague and free floating, narrowly defined.