Substantive Due Process

Question 1

Substantive due process analysis:

Answer 1

Is there a fundamental right being infringed….
If yes, the law is presumed invalid and SS applies.
If no, law presumed valid. Minimal scrutiny applies.

Question 2

Strict Scrutiny (SS)

Answer 2

Government must show infringement is necessary to a achieve a compelling government interest.

Question 3

Strict Scrutiny (SS)

Answer 3

Government must show infringement is necessary to a achieve a compelling government interest.

Question 4

Minimal Scrutiny (rational basis)

Answer 4

Challenger must show that law is not rationally related to a legitimate government interest.

Question 5

Meyer v. Nebraska

Answer 5

(struck down state prohibition on teaching German to children) – “right to acquire useful knowledge, marry, establish a home and bring up children, [and] generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Question 6

Pierce v. Society of Sister

Answer 6

struck down state law requiring all kids to attend public school) – right of parents to direct the upbringing and education of their children.

Question 7

Skinner v. Oklahoma

Answer 7

(struck down mandated sterilization of three-time felony offender on equal protection grounds) – rights of marriage and procreation.

Question 8

Griswold

Answer 8

Fundamental right to privacy in marriage.

• Griswold and Buxton were arrested for giving information, instruction, and medical advice to married persons for preventing conception.

(married couples have a right to seek contraception…cannot be banned by the state).

Question 9

Possible sources of fundamental rights

Answer 9

a. The unwritten right of privacy is part of the penumbra that surrounds other expressly enumerated rights in the Bill of Rights and is applicable to the States via the liberty interest protected by the 14th Amendment’s Due Process Clause.

b. The right of marital privacy is based on history and tradition.

c. The right of privacy is one of the unenumerated rights retained by the people under the 9th Amendment.

Question 10

Modern Due Process Rights
Contraception cases

Answer 10

• Griswold (1965) - fundamental right of privacy in marriage (constitutional right to contraception)
• Eisenstadt (1972) – “right of individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.”

Question 11

Roe v. Wade

Answer 11

• Women have a fundamental right to choose whether to terminate a pregnancy
• Trimester Framework:

Question 12

Post Roe regulations of abortion

Answer 12

• Consent requirements: In Planned Parenthood v. Danforth, the Court invalidated a MO law that required the husband’s consent because where the husband and wife disagree, the wife’s view must prevail because she is more affected. However, minors can be required to get either one parent’s consent or the consent of a judge.
• Notice requirements: Casey struck down notice requirement to husband; but other cases have upheld notice requirements to parents when minor is pregnant as long as there is a judicial by-pass.
• Hospitalization requirements: In Akron, the Court struck down an Ohio law requiring all abortions after the first trimester be performed in hospitals because the state could not show it was necessary to protect women’s health.
• Public funding for abortion: No right to public funds to pay for abortion. Maher v. Roe; Harris v. McRae.

Question 13

Planned Parenthood v. Casey:

Answer 13

Except in a medical emergency, the PA Abortion Control Act requires:
(1) A woman seeking an abortion must be provided with specified information and wait at least 24 hours prior to obtaining an abortion.

(2) A woman seeking an abortion must give her informed written consent.

(3) A minor seeking an abortion must obtain the consent of one parent or of a judge.

(4) Except in certain circumstances, a married woman must sign a statement certifying that she notified her husband of the abortion.

(5) Certain information about the abortion services must be provided to the state (but not the name of the patient).

• Reaffirms “essential holding” of Roe…(J. O’Connor)

(1) A recognition of the right of a woman to choose to have an abortion prior to viability without undue interference from the state;
(2) A confirmation of the state’s power to restrict abortion after viability, subject to exceptions to protect the woman’s life or health; and
(3) The principle that the state has legitimate interests from the outset of pregnancy in protecting the health of the woman and the life of the fetus.

Question 14

Factors that influence the application of stare decisis

Answer 14

1. A rule’s practical workability.
2. Whether reliance on the rule would result in hardship if the rule were changed.
3. Whether related principles of law have developed such that the rule is out of step.
4. Whether facts have changed so significantly that they have robbed the old rule of justification.

Question 15

Casey

Answer 15

A state regulation that imposes an undue burden on the woman’s choice will be invalid Casey.

Question 16

Undue Burden

Answer 16

An undue burden occurs where “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.”

Question 17

Dobbs v. Jackson Women’s Health Organization (2022)

Answer 17

Overrules Roe and Casey…

• “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision . . . including the Due Process Clause of the Fourteenth Amendment.”
• The Court states that only liberty interests that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” are protected.

Question 18

Whats next?

Answer 18

• The issue should be “returned to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’”
• Now “States may regulate abortions for legitimate reasons” and such laws “must be sustained if there is a rational basis on which the legislature could have thought it would serve legitimate state interests.” According to the Dobbs Court, such interests include:
  
  • Preservation of prenatal life at all
    stages of pregnancy
  • Protection of maternal health and
    safety
  • Elimination of particularly
    gruesome or barbaric procedures
• Preservation of the integrity of the
  medical profession
• Mitigation of fetal pain
• Prevent of discrimination on basis
  of race, sex or disability

Question 19

West Coast Hotel Co. v. Parrish

Answer 19

Washington’s law mandating a minimum wage for women is constitutional because requiring a living wage is in the public interest.

Liberty interest.

Legitimate interest - health, safety, general welfare

Question 20

U.S. v. Carolene Products

Answer 20

Great deference to the legislature: legislation affecting commercial transactions is constitutional unless the challenger proves there is no rational basis for the law.

Question 21

lawrence v. Texas

Answer 21

While homosexual conduct is not a fundamental right, intimate sexual relationships between consenting adults are protected by the Fourteenth Amendment