Fundamental Rights

A. Introduction
1. Certain fundamental rights are protected under the Constitution.
a. If they are denied to everyone, it is a substantive due process problem.
b. If they are denied to some individuals but not to others, it is an equal protection problem.
B. Right of Privacy
1. arriage! fundamental right" a la# prohibiting a class of adults from marrying is li$ely to be invalidated
unless the government can demonstrate that the la# is narro#ly tailored to promote a compelling interest.
%. &se of Contraceptives! a state cannot prohibit distribution of nonmedical contraceptives to adults e'cept
through licensed pharmacists.
(. Abortion! the right to privacy includes the right of a #oman to have an abortion under certain
circumstances #ithout undue interference from the state. )Roe v. *ade+
a. Pre!viability, before viability, a state may adopt regulations protecting the mother-s health and the life
of the fetus only if the regulation does not impose an undue burden or substantial obstacle to the
#oman-s right to have an abortion.
i. Informed Consent! state can require abortions to be performed by licensed physicians, and it is not
an undue burden to require the physician to provide the #oman #ith truthful information about the
nature of the procedure, the health ris$s of abortion and childbirth, and the probable gestational age
of the fetus )Planned Parenthood v. Casey+
ii. *aiting Period! requiring a %/!hour #aiting period bet#een the time the #oman gives her informed
consent and the time of the abortion does not amount to an undue burden. )Casey+
iii. Parental Consent! a state may require a minor to obtain her parent-s 0one or both. consent to have an
abortion 0or give notice to them even if their consent is not required. if there is a bypass procedure
#hereby the minor may obtain the abortion 0#ithout notice to or consent of her parents. #ith the
consent of the 1udge. 2he 1udge is required to ma$e a prompt decision as to,
0a. *hether the minor is sufficiently mature to ma$e her abortion decision, and
0b. If she is not sufficiently mature, #hether having an abortion #ithout notice to her parents is in
her best interests. )Casey+
iv. 3pousal Consent! it is an undue burden to require a #oman to sign a statement that she has notified
her spouse that she is about to undergo an abortion )Casey+
v. Physician only requirement! a la# restricting the performance of abortions to licensed physicians
does not impose an undue burden on a #oman see$ing an abortion.
vi. Partial!birth Abortion! a state may not completely proscribe partial!birth abortion procedures since
they are the most commonly used methods for pre!viability, second!trimester abortions. 3uch a ban
#ould impose an undue burden on a #oman-s right to choose a pre!viability abortion. )Stenberg+
0a. 4o#ever, a state could bar one type of partial!birth abortion if there are other adequate, safe
methods of abortion available and the la# provides an e'ception for those instances #hen the
banned procedure is necessary to preserve the life and health of the mother. )Stenberg+
b. Post!viability, once the fetus has become viable, the state-s interest in the fetus-s life can override the
#oman-s right to choose an abortion, but it does not override the state-s interest in the #oman-s health.
i. After viability, the state can prohibit a #oman from obtaining an abortion unless an abortion is
necessary to protect the mother-s life or health.
ii. 5iability is a medical question, and a state cannot unduly interfere #ith the attending physicians
1udgment as to the reasonable li$elihood that the fetus can survive outside the #omb.
c. 6inancing Abortions! neither federal nor local governments are required to grant medical benefit
payments for abortions to indigent #omen, even if they grant benefits to indigent #omen for childbirth
services.
i. A state may prohibit the public funding of abortions by prohibiting the use of public facilities for
abortions and prohibiting any public employee acting #ithin the scope of her public employment
from performing or assisting in the performance of abortions.
/. 7bscene Reading aterial! the right of privacy encompasses the freedom to read obscene material in your
home, e'cept for child pornography. )Stanley v. Georgia+ It does not include the right to sell, purchase,
receive, or transport obscene material.
8. 9eeping :'tended 6amily 2ogether! the right to privacy includes the right of family members! even
e'tended ones! to live together. A ;oning ordinance cannot prohibit e'tended families from living in a
single household since there is no compelling interest to 1ustify such a rule. )Moore v. Cleveland+
<. Rights of Parents! parents have a fundamental right to ma$e decisions concerning the care, custody, and
control of their children. )Troxel v. Granville+
a. :ducation! although the state may prescribe reasonable educational standards, it may not require that all
children be educated in public schools. )Pierce v. Society+ =either may the state forbid education in a
language other than :nglish. )Meyer v. Nebraska+
b. 5isitation! a state la# #as found to be overbroad and in violation of parents- right #here it,
i. Authori;ed the courts to grant any person 0including grandparents. a right to visit a child upon
finding that this #ould be in the child-s best interests and
ii. >id not allo# the 1udge to give significant #eight to the parent-s offer of meaningful visitation
opportunity and the traditional presumption that a fit parent #ill act in the child-s best interest.
?. 3odomy
a. Bowers v. Hardwick, the right of privacy does not include the right of consenting adults to engage in
sodomy.
b. Lawrence v. Texas, overruled Bo#ers, there is an emerging a#areness that liberty gives substantial
protection to adult persons in deciding ho# to conduct their private lives in matters pertaining to se'"
their right to liberty under the >PC gives them the full right to engage in conduct #ithout intervention
of the government. 2he 2e'as statute did not further a legitimate state interest, #hich can 1ustify its
intrusion into the personal and private life of the individual.
C. Right to 5ote! the right to vote is fundamental. Restrictions on voting, other than on the basis of age, residency,
or citi;enship, are invalid unless they can pass strict scrutiny.
>. Right to 2ravel
1. =ature of right, individuals have a fundamental right to travel from state to state, #hich encompasses the
right, 01. to leave and enter another state, and 0%. to be treated equally if they become permanent residents
of that state. )3aen; v. Roe+
%. A state la# that distinguishes bet#een residents of the state on the sole basis of their length of residency
#ill serve no legitimate state interest. 0ere rationality test.
(. International travel, 2he 3C has not yet declared that the right to international travel is fundamental,
although the right appears to be protected from arbitrary federal interference by the >PC of the 8
th
Amend.
:. Right to Refuse edical 2reatment
1. 5accination! an individual can be made to submit to vaccination against contagious diseases because of the
governmental and societal interest in preventing the spread of disease.
%. Refusal of edical 2reatment! 2he 3upreme Court has assumed that a mentally competent adult has the
right to refuse lifesaving medical treatment 0including lifesaving nutrition.. )Cr!an v. "irector+
a. =o Right to Assisted 3uicide! there is no general right to commit suicide" thus, a state may ban persons
from giving individuals assistance in committing suicide. )#ashington v. Glcksberg+ It is not irrational
to permit competent persons to refuse life!sustaining treatment but prohibit physicians to assist in
suicide because there is a logical, rational, and #ell!established distinction bet#een letting someone die
and ma$ing someone die. )$acco v. %ill+
(. 6amily or @uardian >ecisions for Comatose Adult! a state may give relatives or the guardian of an
individual the po#er to decide #hether to refuse lifesaving medical treatment if the individual is incapable
of ma$ing or e'pressing the decision, but the state does not have to grant this po#er. If the state chooses to
grant the po#er, it can condition the po#er on proof, by clear and convincing evidence that the comatose
adult #ould have chosen to refuse medical treatment if she #ere capable of ma$ing the decision and
e'pressing herself. )Cr!an v. "irector+