Freedom of Association and Due Process Flashcards Preview

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Flashcards in Freedom of Association and Due Process Deck (16):

Freedom of Association

First Amendment case law recognizes an individual’s right to freely associate with other individuals in groups.

1. Freedom of association only applies to freedoms protected by the First Amendment and is not for social purposes. 2. The government can only prevent freedom of association or require individuals to associate in regard to First Amendment freedoms if there is a compelling governmental interest that cannot be achieved by less restrictive means.


Freedom of Association-Public job or benefit

Freedom of association also prevents the government from denying a public benefit or job based on a person’s association.


Due Process

Due process has two aspects: Substantive due process and procedural due process. The due process claus of the 5th amendment applies to the fed govt, and the due process clause of the 14th amendment applies to the state and local govts.


Substantive Due Process (SDP)

Used to prevent the govt from depriving citizens of certain fundamental rights, such as the substantive interests in life, liberty, or property. (Regulates one’s personal autonomy and privacy.)


SDP-Fundamental Right

Strict Scrutiny applies where a law limits a fundamental right, and the law will be upheld only if it is necessary to promote a compelling or overriding interest.


SDP-Non-fundamental Right

Rational basis test applies in all other cases, a law will be upheld if it is rationally related to any conceivable legitimate govt interest.


Right of Privacy (SDP)

While there is no Constitutional provision for privacy the Supreme Court has found a right of privacy in the penumbras and emanations of other Constitutional protections. Restrictions on the right of privacy/fundamental rights are analyzed based on strict scrutiny.


Fundamental Rights (SDP)-C.D.R.E.M.P.T

Right to:
1. Contraception information and purchase for both married and non-married persons
2. Determine the size of one's family and one's household.
3. Refuse medical treatment as a competent adult.
4. Engage in private, consensual sexual activity.
5. Marry
6. Parents can make decision concerning the care, custody, and control of their children.
7. Terminate a pregnancy through abortion.


Abortion (Privacy/SDP)

Regulations on an abortion depend upon the stage of viability of the fetus, whether pre-viability or post-viability.


Abortion Pre-vibility Rule (No Undue Burdens)

Before viability, a state may adopt regulations protecting the mother's health and the life of the fetus only if the regulation doesn't impose an undue burden or a substantial obstacle to the woman's right to have an abortion.


Abortion Regulations not unduly burdensome

1. Informed Consent laws
2. A 24-hour waiting period prior to an abortion
3. Parental consent for a minor seeking an abortion
4. Requiring that only physicians may perform abortions
5. Restricting partial-birth abortions
6. Spousal consent is NOT PERMISSIBLE


Abortion Post-Viability Rule (May prohibit abortion unless woman's health is threatened)

Once the fetus has become viable, the state's interest in the fetus's life can override the woman's right to choose an abortion, but it doesn't override the state's interest in the woman's health.


Procedural Due Process (PDP)

PDP requires that the govt give a fair process in front of a neutral decision maker before it deprives a person of life, liberty, or property. The type of notice and the type of hearing will depend on the nature of the interest involved.


Intentional Deprivation vs. Negligent Deprivation (PDP)

Fair process is only required for intentional deprivation, not negligent deprivation.


PDP Non-Judicial Proceedings

The type of process required depends upon the circumstances of the deprivation. The court will weigh:
1. The importance of the individual interest involved;
2. The value of specific procedural safeguards to that interest; and,
3. The governmental interest in fiscal and administrative burdens that the substitute procedural safeguards would cause, including the public interest.


PDP Judicial Proceedings

For judicial proceedings this includes the right to a hearing, counsel, call witnesses, a fair trial, and appeal.