Chapter 8 - Substantive Due Process

3rd

Is There a Sufficient Justification for the Government's Infringement of a Right? If a right is deemed fundamental, the government must present a compelling interest to justify an infringement. Alternatively, if a right is not fundamental, only a legitimate purpose is required for the law to be sustained.

2nd

Is the Constitutional Right Infringed? When a right is infringed - when the exercise of a right is prohibited - when burdening the exercise of a fundamental right is considered an infringement requiring applicaiton of strict scrutiny - the court considers the "directness and substantiality of the interference.

The Right to Marry

"Marriage is one of the basic civil rights of man," fundamental to our very existence and survival. Skinner v. State of Oklahoma. To deny such right, is surely to deprive all the State's citizens of liberty without due process of law. The freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

The Ninth Amendment

"The enumeration in the Constitution of certain rights, shall not be construed to disparage others retained by the people." Supreme Crt rarely invoke 9th amendment except for in Griswold v. Connecticut, in a concurring opinion, Justice Goldberg reviewed history of the 9th Amendment and relied on it to justify invalidating a law prohibiting use of contraceptives . 9th amendment is not a source of rights in that rights are not protected under it. Rather 9th Amendment is used to provide a textual justification to protect non textual rights, such as the right to privacy. 9th Amendment is justification for Court to safeguard unenumerated liberties.

Constitutional Protection for Family Autonomy

...

Constitutional Protection for Medical Care Decisions

...

Constitutional Protection for Sexual Orientation and Sexual Activity

...

Cruzan v. Director, Missouri Department of Health

...

Framework for Analyzing Fundamental Rights

...

Lawrence v. Texas

...

Right to Physician Assisted Suicide

...

Right to Refuse Treatment

...

Special Consent and Notice Requirements

...

The Recognition and Reaffirmation of the Right to Abortion

...

The Right of Parents to Control the Upbringing of Their Children

...

Vacco v. Quill

...

Washington v. Glucksburg

...

The Right to Purchase and Use Contraceptives

A second aspect of reproductive freedom is the right to purchase and use contraceptives.

Parental Notice and Consent Requirements

Balloti v. Baird (Didn't cover)

Griswold v. Connecticut

Brief Fact Summary. A Connecticut provision outlawing the counseling of others to use contraception, as well as the use of contraception, was found unconstitutional under strict scrutiny because it violated the Due Process Clause. Synopsis of Rule of Law. The right of marital privacy lies within the penumbra of the Bill of Rights. Therefore, it is a fundamental right and strict scrutiny is the standard of judicial review. Facts. Appellant, Ms. Griswold, was the Executive Director of the Planned Parenthood League of Connecticut ("League"). Appellant and the Medical Director for the League gave information and instruction and medical advice to married couples about birth control. Appellant and her colleague were convicted under a Connecticut law which criminalized counseling, and other medical treatment to married persons for purposes of preventing conception. Appellants were found guilty as accessories and fined $100 each. The state appellate courts affirmed. Issue. Whether the Constitution protects the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? Held. Yes. Judgment of the state appellate court affirmed. The Bill of Rights has a penumbra expanding the right of privacy. The present case concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. It also concerns a law that, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Thus, the Connecticut statute conflicts with the exercise of this right and is therefore null and void. Dissent. The government has a right to invade one's privacy unless there is a specific constitutional provision prohibiting such invasion. The law in this case is a silly one. However, the Court is not asked if it is silly. Rather, the Court is asked whether the law violates the constitution. There is no such general right of privacy in the Bill of Rights. Therefore, this law does not violate the Constitution. Concurrence. The unenumerated right of privacy in the marital relation is "a personal right 'retained by the people' within the meaning of the Ninth Amendment." Therefore, it is among the fundamental liberties that are protected by the Fourteenth Amendment from infringement by the states. The proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the 14th Amendment because the enactment violates basic values "implicit in the concept of ordered liberty." The "liberty" of the Due Process Clause is a rational continuum which includes a freedom from all substantial arbitrary impositions and purposeless restraints. A ban on the use of contraceptives by married couples does not reinforce the state's ban on illicit sexual relationships. Discussion. The plurality holding in this case introduced the concept of penumbras in order to expand the liberties of the Bill of Rights to include the right of privacy within the marital relation.

Roe v. Wade

Brief Fact Summary. A Texas law criminalizing abortion except where the procedure is necessary to "save the life of the mother" and without regard to the state of pregnancy was found by the Supreme Court of the United States to violate due process. Synopsis of Rule of Law. The right of privacy protects a married or unmarried woman's liberty to choose an abortion, but this right must be considered against important state interests in regulation such as the stage of the pregnancy. Facts. A Texas law criminalized the procurement of an abortion except by "medical advice for the purpose of saving the life of the mother." The challengers are a single pregnant woman, Ms. Roe, a childless couple, the wife not pregnant, Mr. and Mrs. Doe, and a licensed physician, Dr. Hallford. Suits by Ms. Roe and the Doe's were class actions. The three-judge district court ruled the Doe's complaint non-justiciable, but granted declaratory relief to Appellants Ms. Roe and Dr. Hallford, holding the law unconstitutional. Issue. Whether the Texas statute improperly invades the right of a pregnant woman to choose to terminate her pregnancy. Whether a fetus is a "person" within the language and meaning of the Fourteenth Amendment. Whether the pregnant woman can be isolated in her privacy. Held. Yes. The three-judge district court judgment affirmed. The Constitution does not explicitly mention any right of privacy. However, the Court has recognized that a right of personal privacy does exist under the Constitution. This right of privacy, whether found in the Fourteenth Amendment's concept of personal liberty as this Court feels it is, or as the District Court determined, in the Ninth Amendment, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent. She could suffer from medical harm, a distressful life and future, psychological harm, thereby making the unwanted child suffer as well. This right of privacy is not absolute, however. The state may regulate such fundamental rights if that regulation is justified by a "compelling state interest" and is narrowly drawn to express only the legitimate state interests at stake. No. The use of the word "person" in the Constitution has only postnatal applications. The word "person," as used in the Fourteenth Amendment, does not include the unborn. No. When a woman carries an embryo, and later a fetus, her privacy is no longer sole and any right of privacy she possesses must be measured accordingly. A fetus becomes viable (can survive outside the womb) after the first trimester. The state does have an important and legitimate interest in preserving and protecting the health of the pregnant woman. The state also has an important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. The attending physician and his patient are free to determine, without regulation by the state, that the patient's pregnancy should be terminated during the period prior to the fetus' viability, the "compelling point." The state may thus increase restrictions on abortion as the period of pregnancy lengthens so long as those restrictions are tailored to the recognized state interests. Dissent. The drafters did not intend to have the Fourteenth Amendment withdraw from the states the power to legislate with respect to abortion. There is not a right of privacy involved in this case. Concurrence. The asserted state interests are legitimate objectives, but the Court has demonstrated these state interests cannot constitutionally support the broad abridgement of personal liberty worked by the Texas law. The Ninth Amendment acknowledges a catalogue of rights within the meaning of "liberty" as used in the Fourteenth Amendment. First is the autonomous control over the development and expression of one's intellect, interest, tastes and personality. Second is freedom of choice in the basic decisions in one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children. Third is the freedom to care for one's health and person, freedom from bodily restraint, freedom to walk, stroll or loaf. Discussion. This monumental case roots the right of privacy it protects in the liberty clause of the Fourteenth Amendment. The woman's right of privacy can only be defeated by a "compelling state interest" such as protecting the woman's health and protecting the potentiality of life.

Zablocki v. Redhail

Brief Fact Summary. A Wisconsin Statute forced individuals to receive court permission in order to marry if they have a minor issue not in their custody which they are obligated to pay support for. Appellant was unable to receive court permission under the statute and brought suit on behalf of all residents similarly situated. Synopsis of Rule of Law. If a statute significantly interferes with the exercise of a fundamental constitutional right, it must be supported by sufficiently important state interests and closely tailored to effectuate only those interests. Such interests are subject to strict scrutiny or "critical examination." Facts. Appellee Redhail was unable to enter into a lawful marriage under a Wisconsin statute that did not permit a resident to marry without court permission if he has a minor issue not in his custody which he is obligated to pay support by court order. The statute allowed court permission only if the marriage applicant submits proof of compliance with the support obligation and additionally demonstrates that the children covered by the support order are not then or likely thereafter to become public charges. In 1972 when appellee was a minor high school student he was found to be the father of a baby girl born out of wedlock and ordered to pay monthly support. Appellee was unemployed and indigent until 1974, and unable to make payments. In 1974 appellee applied for a marriage certificate with appellant Zablocki, a county clerk. The application was denied due to appellee's failure to obtain the required court order. It was stipulated that appellee was in arrearage on his payments and his child had been a public ward since birth, therefore he was unable to satisfy the requirements for a court order. Appellee filed his complaint on behalf of himself and all similarly situated Wisconsin residents. Issue. Is a Wisconsin statute that provides that members of a certain class of residents cannot marry, within the State or elsewhere, without first obtaining a court order granting permission to marry constitutional? Held. The statute is unconstitutional because it significantly interferes with the exercise of a fundamental right and is not supported by sufficiently important state interests and is not closely tailored to effectuate only those interests. The court employs a critical examination of the state interests advanced in support of the statute because the right to marry is of fundamental importance. Previous court decisions have confirmed that the right to marry is protected by the Due Process Clause of the Fourteenth Amendment. Although reasonable restrictions that do not significantly interfere with the right to marry may be imposed, the present statute absolutely prevents some in the protected class from obtaining the required order, and places sufficient burdens and significant intrusions on others. Appellant claims that the statute supports the State's interest in counseling the applicant as to the need of fulfilling his prior support obligations and protects the welfare of the out-of-custody children. The first claim is faulty because even if counseling is provided there would be no interest in continuing to withhold permission to marry after counseling is completed. The second is faulty for two reasons. First, if the individual is unable to meet payments, the statute simply prevents marriage without providing any money to the minor children. Second, the State has numerous other means for extracting the payments. There is also suggestion that the statute prevents applicants from incurring new support obligations. However, this is underinclusive because it limits only the new financial commitments arising out of a marriage and overinclusive because in many cases the income from the new spouse may increase the applicant's ability to pay. The statute may only result in more children being born out of wedlock. Concurrence. Justice Stewart. The majority's reliance on the Equal Protection Clause is misplaced because it is intended to deal only with invidiously discriminatory classifications. The Due Process Clause protects the liberty right to marriage, and protection of the State's interests must fall short of not permitting poor people to marry. Justice Stevens. The Wisconsin Legislature incorrectly assumed that (a) only fathers would be affected by the legislation and (b) they would never marry employed women. The Statute cannot withstand scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Discussion. The majority finds the statute to violate constitutional protections under both the Due Process and Equal Protection Clauses. The Concurrences appear to differ mainly on which of these two clauses is more applicable. Both DP & EQ P.- Zablocki v. Redhail (1978) - The right to marry to be a fundamental right protected under the EQ, but the concurring opinion used a due process approach. Despite which clause is used to protect the issue is: Whether a claimed liberty is sufficiently important to be regarded as fundamental, even though it is not mentioned in the text of the Constitution. Diff btwn DP and EQ: If right is safeguarded under DP- Con issue is whether the gov't interference is justified by a sufficient purpose EQ issue is whether the government's discrimination as to who can exercise the right is justified by a sufficient purpose

Stanley v. Illinois

Brief Fact Summary. Appellant had an ongoing relationship with a woman with whom he sired and raised three children. Upon the death of the mother the children were deemed wards of the State under an Illinois law that did not place children in the custody of unwed fathers. Synopsis of Rule of Law. The statute violated appellant's equal protection under the laws by depriving him of custody of his children when married fathers and unwed mothers could not be deprived of custody without being shown to be unfit parents. Facts. Joan Stanley lived with Peter Stanley, appellant, intermittently for 18 years, during which time they had three children. Under Illinois law the children of unwed fathers became wards of the State upon death of the mother. When Joan died a dependency proceeding was instituted by the State and appellant's children were declared wards of the State and placed with court-appointed guardians. Appellant appealed upon the fact that he had never been shown to be an unfit parent and that since married fathers and unwed mothers could not be deprived of their children without such a showing, he had been deprived of the equal protection of laws guaranteed by the Fourteenth Amendment. Issue. Does the Illinois statute violate the Fourteenth Amendment to the United States Constitution by distinguishing against and burdening unwed fathers? Held. As a matter of due process of law, appellant was entitled to a hearing on his fitness as a parent before his children were taken from him. By denying him a hearing when all other parents whose custody of their children is challenged are permitted one, the State denied appellant the equal protection of laws under the Fourteenth Amendment. Under Illinois law, children of all parents can be taken from them in a neglect proceeding, but only after notice, hearing, and proof of unfitness. In contrast, an unwed father is uniquely subject to the more simplistic dependency proceeding. The private interest of a man and the children he has sired and raised warrants deference and protection. In comparison, previous case law has not refused to recognize those family relationships unlegitimized by a marriage ceremony. The State claims that the interest furthered by the statue is to protect the moral, emotional, mental, and physical welfare of the minor and the best interests of the community. In support of this interest, the State asserts that most unmarried fathers are unsuitable and neglectful parents. However, the State registers no gain toward its goals when it separates children from the custody of fit parents. The State's insistence on presuming rather than proving appellant's unfitness solely on the basis of convenience is unconstitutional. Discussion. The Court acknowledges that the State has a legitimate interest in prompt efficacious procedures furthered by the presumption that unwed fathers are unfit. However, such an interest is outweighed by the father's right to demonstrate that he is fit when the right taken away from the father would be the right to raise his child.

Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary

Brief Fact Summary. Appellees, two non-public schools, were protected by a preliminary restraining order prohibiting appellants from enforcing an Oregon Act that required parents and guardians to send their children to public school. Appellants appealed the order. Synopsis of Rule of Law. The 14th Amendment provides a liberty interest in a parent's or guardian's right to decide the mode in which their children are educated. State's may not usurp this right when the questioned legislation does not reasonably relate to a viable state interest Facts. Appellee the Society of Sisters, a corporation with the power to establish and maintain academies or schools and Appellee Hill Military Academy, a private organization conducting an elementary, college preparatory, and military training school, obtained preliminary restraining orders prohibiting appellants from enforcing Oregon's Compulsory Education Act. The Act required all parents and guardians to send children between 8 and 16 years to a public school. The appellants appealed the granting of the preliminary restraining orders. Issue. Does the Act unreasonably interfere with the liberty of parents aHeld. The Act violates the 14th Amendment because it interferes with protected liberty interests and has no reasonable relationship to any purpose within the competency of the state. The Appellees have standing because the result of enforcing the Act would be destruction of the appellees' schools. The state has the power to regulate all schools, but parents and guardians have the right and duty to choose the appropriate preparation for their children. Discussion. While the state has the right to insure that children receive a proper education, the 14th Amendment provides parents and guardians with a liberty interest in their choice in the mode in which their children are educated.nd guardians to direct the upbringing and education of children under their control?

Eisenstadt v. Baird

Brief Fact Summary. The Appellee, Baird (Appellee), was arrested for lecturing on contraception to a group of University students and distributing contraceptive foam to a student after the lecture. Synopsis of Rule of Law. The State may not discriminate between married and unmarried individuals in prohibiting the distribution of contraception. Facts. Massachusetts law created three classes of people receiving contraceptive devices and drugs: (1) married persons could receive contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; (2) single people may not receive contraceptives from anyone to prevent pregnancy and (3) anyone may receive contraceptives from anyone to prevent the spread of disease. Issue. May the state discriminate between married and unmarried couples in prohibiting birth control methods? Held. No. Appeals Court ruling affirmed. Justice William Brennan (J. Brennan) notes that "if the right to privacy means anything, it means the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Dissent. Chief Justice William Burger (J. Berger) argues that there is nothing in the Fourteenth Amendment of the United States Constitution (Constitution) that suggests birth control must be made available on the open market. Discussion. A right to privacy is again recognized in Eisenstadt. Here, the right to contraception is extended to unmarried individuals, as well.

Moore v. City of East Cleveland, Ohio

Brief Fact Summary. The Petitioner, Mrs. Inez Moore Moore (Petitioner), was convicted of a criminal offense under an East Cleveland housing ordinance for having one of her grandsons living in her house. Synopsis of Rule of Law. The State must advance a compelling interest to infringe upon the choice of relatives of a close degree of kinship to live together. Facts. East Cleveland's housing ordinances restrict occupancy of certain dwellings to single family units. The ordinance in question, however, recognizes only a few categories of related individuals as a "single family." At the time of the complaint the Petitioner, lived in East Cleveland with her son and two of her grandsons, who were cousins, rather than brothers. Her living situation did not match one of the statutory definitions of single family. She was charged and sentenced to pay a $25 fine and spend 5 days in jail. Issue. May the City restrict its definition of single family in such a manner as to remove certain combinations of close blood relations in the same house from that definition? Held. No. Appeals Court ruling reversed and remanded. Justice Lewis Powell (J. Powell) notes that municipalities generally have a broad ability to enforce single-family housing ordinances against groups of individuals living together where there is no relation by blood, adoption, or marriage. However, the tradition of having family members live with others in their extended family is long and representative of the basic values underlying our society. As such, the decision to move in with extended family or move extended family in with ones nuclear family may be regarded as a fundamental right. J. Powell argues the State has no compelling interest in restricting the definition of a single family in such a manner as to exclude combinations of close blood relations. Dissent. Justice Potter Stewart (J. Stewart) argues that the line of cases restricting definitions of single families focuses not so much on blood relation, but rather the ability to have children and to raise them in the manner one deems proper. The City ordinance does not affect the Petitioner's right to do any of these. Discussion. The majority and dissent differ largely in their conception of what the fundamental right involved in the case is. The majority holds it to be family associations broadly. The dissent argues that the family associations are merely emanations from more basic rights, reproductive autonomy and child-rearing. The Court in Moore emphasized that Belle Terre case had involved only "unrelated individuals" and, in fact, the zoning ordinance there had an exception for "all who were related by "blood, adoption, or marriage?"

Troxel v. Granville

Brief Fact Summary. The Petitioners, the grandparents of Isabelle Troxel and Natalie Troxel (Petitioners), sued their mother, the Respondent, Tommie Granville (Respondent), for visitation rights, under a Washington statute that allows any individual to sue for visitation rights. Synopsis of Rule of Law. The interest of parents in the "care, custody, and control of their children" is a fundamental right that the State may not abridge without a compelling interest. Facts. The Respondent and Brad Troxel (Mr. Troxel) had a relationship that lasted some years and produced two daughters, but the couple never married. Two years after they separated, Mr. Troxel committed suicide. In the time between their separation and his suicide, Mr. Troxel often brought Isabelle Troxel and Natalie Troxel to his parents' house. After Mr. Troxel's suicide, his parents wanted to continue to have a relationship with their granddaughters. However, the Respondent's opinion of appropriate visitation times and durations differed from the grandparents'. So, under the Washington statute authorizing suit for visitation rights by any party, the grandparents asked for a judicial determination in the best interest of the children. Issue. Does the Washington statute interfere unnecessarily with parental control over the raising of children? Held. Yes. Supreme Court of Washington ruling affirmed. Justice Sandra Day O'Connor (J. O'Connor) reiterated that the raising of a child is one of the most fundamental of all protected liberties. Because of this, the state must prove the existence of a compelling interest for the statute. J. O'Connor points out two important issues: (1) the statute does not require the court to afford any special weight to the parent's decisions regarding the child and (2) there is no determination that the parent is an unfit guardian. This latter point is most important, as there is a presumption that fit parents act in the best interests of their children. Because of this, when the trial court reviewed the suit it gave no special consideration to the Respondent's concept of the best interest of her children. Dissent. Justice John Paul Stevens (J. Stevens) believes the case should have been denied certiorari, as the Washington Supreme Court struck down the statute itself. Justice Antonin Scalia (J. Scalia) argues that the Court should not be deciding questions of family law, but rather the legislature. Justice Anthony Kennedy (J. Kennedy) believes that the best interest of the child standard required by the statute provides the necessary protection to the parent's constitutional rights. Concurrence. Justice David Souter (J. Souter) argues that the statute is facially unconstitutional as it too broadly allows anyone to sue for visitation rights at any time. Justice Clarence Thomas (J. Thomas) states that he would affirm the lower court ruling on the basis that Washington has no compelling interest in second-guessing a fit parent's decision on visitation of third parties. Discussion. The plurality does not address the facial constitutionality of the statute, but that the statute is unconstitutional when applied to the situation of the Respondent and her children. The greatest difference between the plurality and the concurrences lies in whether or not the facial issue is reached.

Loving v. Virginia

Brief Fact Summary. The state of Virginia enacted laws making it a felony for a white person to intermarry with a black person or the reverse. The constitutionality of the statutes was called into question. Synopsis of Rule of Law. Restricting the freedom to marry solely on the basis of race violates the central meaning of the Equal Protection Clause. Facts. The state of Virginia enacted laws making it a felony for a white person to intermarry with a black person or a black person to intermarry with a white person. The Supreme Court of Appeals of Virginia held that the statutes served the legitimate state purpose of preserving the "racial integrity" of its citizens. The State argued that because its miscegenation statutes punished both white and black participants in an interracial marriage equally, they cannot be said to constitute invidious discrimination based on race and, therefore, the statutes commanded mere rational basis review. Issue. Was rational basis the proper standard of review by which to evaluate the constitutionality of the statutes? Were the Virginia miscegenation statutes constitutional under the Equal Protection Clause? Held. No and No. The mere fact that a statute is one of equal application does not mean that the statute is exempt from strict scrutiny review. The statutes were clearly drawn upon race-based distinctions. The legality of certain behavior turned on the races of the people engaging in it. Equal Protection requires, at least, that classifications based on race be subject to the "most rigid scrutiny." The Equal Protection Clause of the United States Constitution (Constitution) prohibits classifications drawn by any statute that constitutes arbitrary and invidious discrimination. The fact that Virginia bans only interracial marriages involving whites is proof that the miscegenation statutes exist for no purposes independent of those based on arbitrary and invidious racial discrimination. Concurrence. Justice Potter Stewart (J. Stewart) argued it is not possible for a state law to be valid, which makes the criminality of an act depend upon the race of the actor. Discussion. The key to this case is articulated in J. Stewart's concurrence. The miscegenation statute was improper because it made the legal consequences of an action turn on the races of the persons participating in it.

Government Restrictions on Funds and Facilities for Abortions

Didn't cover: Maher v. Roe, Harris v. McRae

Planned Parenthood v. Casey

Didnt cover

Planned Parenthood v. Danforth

Didnt cover

Procedural Due Process

Existence of right triggers two distinct burdens on the government. Substantive and Procedural. Substantive: the govt. must justify an infringement by showing that its action is sufficiently related to an adequate justification. Procedure: When a person takes away a person's life, liberty, or property, it must provide adequate procedures.

Gonzales v. Carhart

Facts of the Case In 2003, Congress passed and the President signed the Partial-Birth Abortion Ban Act. The controversial concept of partial-birth abortion is defined in the Act as any abortion in which the death of the fetus occurs when "the entire fetal head [...] or [...] any part of the fetal trunk past the navel is outside the body of the mother." Dr. Leroy Carhart and other physicians who perform late-term abortions sued to stop the Act from going into effect. The plaintiffs argued that the Act could apply to a more common abortion procedure known as "D&E;" ("dilation and evacuation"), as well as to the less common "intact D&E;," sometimes called D&X; ("dilation and extraction"). With this application the Act would ban most late-term abortions and thus be an unconstitutional "undue burden" on the right to an abortion, as defined by the Supreme Court in Planned Parenthood v. Casey. The plaintiffs also argued that the Act's lack of an exception for abortions necessary to protect the health of the mother rendered it unconstitutional under the Supreme Court's decision in Stenberg v. Carhart, regardless of Congress's finding in the Act that partial-birth abortions are never medically necessary. A federal District Court agreed and ruled the Act unconstitutional on both grounds. The government appealed to the Court of Appeals for the Eighth Circuit. The government argued that the Act only bans a narrow category of abortion procedures, and that a health exception is not required when Congress determines that a banned abortion procedure is never necessary for the health of the mother. The Eighth Circuit disagreed and upheld the District Court, ruling that a health exception is required for all bans on abortion procedures when "substantial medical authority" supports the necessity of the procedure. The Circuit Court ruled that the ongoing disagreement among medical experts over the necessity of intact D&E; abortions was sufficient to establish that the Act was unconstitutional without a health exception. The Circuit Court did not reach the question of whether the Act was so broad as to qualify as an unconstitutional "undue burden." Question Is the Partial-Birth Abortion Ban Act of 2003 an unconstitutional violation of personal liberty protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions necessary to protect the health of the mother? Argument Gonzales v. Carhart - Oral Argument Gonzales v. Carhart - Opinion Announcement Conclusion Decision: 5 votes for Gonzales, 4 vote(s) against Legal provision: 18 U.S.C. 1531 No. The Court ruled by a 5-4 vote that Congress's ban on partial-birth abortion was not unconstitutionally vague and did not impose an undue burden on the right to an abortion. Justice Anthony Kennedy wrote the opinion for the majority. The Court held that, under the most reasonable interpretation, the Act applies only to the intact D&E; method (also known as "partial-birth abortion") and not to the more common D&E; procedure. The Act's application was limited by provisions that restrict enforcement to cases where the physician intends to perform an intact D&E; and delivers the still-living fetus past specific "anatomical landmarks." Because the majority found that the Act applies only to a specific method of abortion, it held that the ban was not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion. The Court also held that Congress, after finding intact D&E; never to be medically necessary, could validly omit a health exception from the ban, even when "some part of the medical community" considers the procedure necessary. To require the exception whenever "medical uncertainty" exists would be "too exacting a standard to impose on the legislative power [...] to regulate the medical profession." The Court left open the possibility that an as-applied challenge could be brought against the Act if it were ever applied in a situation in which an intact D&E; was necessary to preserve a woman's health. Justice Ginsburg's dissent disputed the majority's claim that the opinion was consistent with the Casey and Stenberg precedents and said "The Court's hostility to the right Roe and Casey secured is not concealed."

The Right to Abortion

In examining the right to abortion - the analysis divided into five parts: (1) First part reviews S. Crts conclusion that Constitution protects the right of women to choose to terminate their pregnancies prior to viability (2) Second, considers what types of state regulations of abortion are permissible and which are unconstitutional. (3) Third, presents decisions concerning laws that prohibit the use of government funds or facilities for performing abortions. (4) Fourth, examines a particular type of government regulation that has been declared unconstitutional: spousal consent and spousal notification requirements for married women's abortions. (5) Last subsection reviews the law concerning the ability of a state to require parental and/or consent for an unmarrried minor's abortion.

4th

Is the Means Sufficiently Related to the Purpose? Under strict scrutiny it is not enough for the government to prove a compelling purpose behind a law; the government also must show that the law is necessary to achieve the objective This requires that the government people that it could not attain the goal through any means less restrictive of the right. In comparison, under rational basis review, the means only has to be a reasonable way to achieve the goal and the government is not required to use the least restrictive alternative.

1st

Is there a Fundamental Right? If right is fundamental - govt will only prevail if it meets strict scrutiny, but if the right is not fundamental , generally, only the rational basis test is applied. Judiciary will defer to legislature unless there is discrimination against a "discrete and insular" minority or infringement of a fundamental right - Judiciary review articulated in Carolene Products.

Buck v. Bell

Old case, implicitly overruled by Skinner v. Oklahoma, allowed for sterilization of those who produce feeble minded offspring in an effort to curb draining of State resources to treat such feeble minded individuals.

Planned Parenthood v. Casey

Planned Parenthood v. Casey (1992) Holding: Government may not ban abortions prior to viability. However, the government may regulate abortions before viability so long as it does not place an "undue burden," i.e. a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus, on access to abortions. Also overruling Roe v. Wade trimester framework. Facts: PA law that required doctors to provide women seeking an abortion with information designed to persuade her against importion and a 24 hour waiting period. Dissent - Rehnquist, Scalia, Thomas, White: There is no Constitutional right to privacy nor any traditional or historical liberty interest in a "right to privacy" or an abortion. Dissent - Scalia, White, Thomas: States may permit abortion, but the Constitution does not require them to do so. The question should be left to the States and the Democratic process. Analysis of Undue Burden: Threshold Questions: 1) is the right infringed? 2) Is the infringement justified by a sufficient purpose; 3) are the means sufficiently related to the end sought? Balancing the state's interest vs. woman's right to have an abortion before a fetus' viability Number of women adversely affected by the law While not dispositive of the issue, the larger the percentage of women affected the greater indicator that it is unduly burdensome.

Constitutional Protection for Reproductive Autonomy

S. Crt has recognized three aspects of reproductive autonomy to be fundamental rights: the right to procreate, the right to purchase contraceptives, and use contraceptives, and the right to abortion.

Skinner v. Oklahoma

Skinner v. Oklahoma (1942) - repudiated Bell Holding: OK Habitual Criminal Sterilization Act that allowed courts to order the sterilization of those convicted two or more times for crimes involving "moral turpitude." Rule: Right to procreate as a fundamental right and to force sterilization without a hearing is a violation of 14th Amendment DP rights Analysis: "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if excercised, may have substle, far-reaching and devastating efforts. In evil or reckless hands it can cause races or types which are inimical to the dominant group to whither and disaapear. There is no redemption for the individual whom the law touches...he is forever deprived of a basic liberty."

Meyer v. Nebraska

Synopsis of Rule of Law. The Fourteenth Amendment prohibits states from creating legislation that restricts liberty interests when the legislation is not reasonably related to an acceptable state objective. Facts. Plaintiff was convicted for teaching a child German under a Nebraska statute that outlawed the teaching of foreign languages to students that had not yet completed the eighth grade. The Supreme Court of Nebraska upheld the conviction. Issue. Does the statute as construed and applied unreasonably infringe on the liberty guaranteed by the Fourteenth Amendment? Held. The statute as applied is unconstitutional because it infringes on the liberty interests of the plaintiff and fails to reasonably relate to any end within the competency of the state. The Fourteenth Amendment encompasses more than merely the freedom from bodily restraint. The state argues that the purpose of the statute is to encourage the English language to be the native tongue of all children raised in the state. Nonetheless, the protection of the Constitution extends to those who speak other languages. Education is a fundamental liberty interest that must be protected, and mere knowledge of the German language cannot be reasonably regarded as harmful. Discussion. Liberty interests may not be interfered with by the states when the interference is arbitrary and not reasonably related to a purpose which the state may permissively regulate

Michael H. v. Gerald D.

Synopsis of Rule of Law. The State has a legitimate interest in protecting the parental rights of a married couple having a child to the exclusion of the parental rights of a biological father. Facts. The situation at bar is sordid and convoluted. In short, Michael H. impregnated Carole D. while she was still married and living with Gerald D. The child born from their encounter, Victoria D., has Gerald D. recorded as her father on her birth certificate. Carole and Gerald for many years commencing with the child's birth, held Victoria out publicly as their own offspring. However, DNA tests show that Michael H. is over 98% certainly Victoria's biological father. While Carole D. and Gerald D. were separated, Michael H. and Carole D. lived together with Victoria D. and held her out publicly as their child. Carole D. and Gerald D. have since divorced and Carole D. has married Scott K. Michael H. now sues for parental rights over Victoria D. California's paternity laws conclusively presume that the issue (child) of a wife cohabiting with her non-impotent or sterile husband is a child of the marriage. This presumption may only be challenged by the husband or wife within the first two years of marriage. Issue. Do California's paternity statutes deprive Michael H. of a fundamental right to have parental contact with his child? Held. No. Ruling affirmed. Justice Antonin Scalia (J. Scalia) refutes Michael H.'s contention that biological fatherhood and an existing parent-child relationship entitle him to prove paternity of Victoria D. Specifically, J. Scalia notes that there is no established tradition of allowing a unitary family to be dissolved by a third party judicially without their consent. Dissent. Justice William Brennan (J. Brennan) dissents, viewing the majority's insistence on the rights of the State to preserve the unitary family as singularly incongruent to the current case. There is little or no resemblance to a traditional unitary family in the relationships carried on by Carole D., Gerald D., and Michael H.. J. Brennan further asserts that such state of affairs is more common than the majority wishes to admit. Discussion. The major difference between the majority and dissent is whether the United States Constitution (Constitution) is one of predefined, static principles, or an organic and changing document. J. Scalia's analysis rests on the traditional interest of the State in preserving the unitary family and discouraging adultery (if one wishes to have a paternal relationship with ones offspring, do not impregnate a married woman whose husband may accept the child as his own). Whereas J. Brennan's approach is one based in the reality of the situation (if the traditional unitary family clearly means so little to Carole D., why is the preservation of the traditional unitary family advanced as an argument benefiting her?). The line of argument in J. Brennan's dissent requires that behavior such as Carole D. and Michael H's not be a societal outlier.

The Right to Procreate

The S.Ct has held that the right to procreate is a fundamental right and therefore government-imposed involuntary sterilization must meet strict scrutiny.

The Concept of Fundamental Rights

The Supreme Court has held that some liberties are so important that they are deemed to be "fundamental rights" and that generally the government cannot infringe them unless strict scrutiny is met: that is, the government's action must be necessary to achieve a compelling purpose Some liberties are so important that they are deemed to be "fundamental rights" and that generally the government cannot infringe them unless strict scrutiny is met; that is, the government's action must be necessary to achieve a compelling purpose. Liberties: protecting family autonomy; procreation; sexual activiti and sexual orientation; medical care decision making; travel; voting; and access to courts Non-fundamental rights under equal protection or due process only receive minimal judicial scrutiny; that is, the gov't action only has to meet the rational basis test and be shown to be rationally related to a legitimate government purpose. Court has refused to establish a right as a fundamental right to warrant the usage of strict scrutiny Almost all rts protected by the Court under Due Process Clauses of 5th & 14th Amendment and/or Eq. Protection. Some Due Process Clause alone

The Right to Custody of One's Children

The Supreme Court has recognized that parents have a fundamental right to custody of their children. A "natural parent's desire for and right to the companionship, care, custody, and management of his children is an interest far more precious than any property right."

Government Regulation of Abortions

There are many different ways the government can regulate performance of abortions. After Planned v. Casey, the government can regulate abortions performed prior to viability as long as there is not an undue burden on access to abortions.

The Right to Keep the Family Together

Tradition of having family members live with others in their extended family is long and representative of the basic values underlying our society.