Fundamental Rights Flashcards
(22 cards)
What are the Fundamental Rights?
1) Marraige
2) Reproductive Autonomy
3) Abortion
4) Medical Decisions
5) Sexual Privacy
6) Travel
7) Right to Vote
8) Access to Justice
“Griswold” and “Eisenstadt”
“Griswold” gave the fundamental right to “not” procreate to MARRIED couples only.
“Eisenstadt” says no difference between married and unmarried couples
Look to see if:
- IS THE DIFFERENT CLASS SITUATED THE SAME?
“Griswold” and “Eisenstadt”
“Griswold” gave the fundamental right to “not” procreate to MARRIED couples only.
“Eisenstadt” says no difference between married and unmarried couples
Look to see if:
- IS THE DIFFERENT CLASS SITUATED THE SAME?
What test does Abortion get
UNDUE BURDEN TEST
Casey Abortion standard
1) Pre- viablity, state can regulate abortion so long as it does not create an undue burden for women to get abortion
2) Post-Viability, state can ban abortion but must make an exception for health of the woman
GOV’S ARGUMENT FOR FUNDAMENTAL RIGHTS
- Not a fundamental right and passes RBR
- Even if it is a fundamental right it satisfies SS
How to Argue for a New Fundamental Right
(1) What is the Right?
(2) Is it deeply rooted in our countries history and tradition?
- If yes, → SS
- No? → RBR
Things to consider for “deeply rooted.”
(1) Our own history
(2) State law/State practice
(3) World history
Highly arguably
World history/Foreign international law
PLAINTIFF’S ARGUMENT FOR FUNDAMENTAL RIGHTS
- It is a fundamental right and it fails SS
Look to:
The nature of the right
Deeply rooted in our nation’s history or tradition - Even if it is not a fundamental right, gov fails at RBR
What level of scrutiny does abortion get?
Abortion is a strange one, it is the only one that gets the “undue burden” test.
Right to Travel
Test:
- It protects the right of a citizen of one state to enter and to leave another state.
- The right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state.
- For those travelers who elect to become permanent residents, the rights to be treated like other citizens of that state.
Standard under Casey (look to point of viability)
Pre-Viability: State can regulate abortion as long as it does not create an UNDUE BURDEN for women to get abortion.
Post-Viability: State can ban an abortion but must make an exception for the life/health of the woman
-State may ban abortion entirely if they want.
Examples of “Undue Burden” and “Not Undue Burden”
- Spousal consent to get abortion pre-viability
- Spousal notification pre-variability
- Parental consent for minor
- No, unless no judicial override? → Undue Burden - 24 hour waiting period is NOT undue burden
challenge it “as applied” is an absolute ban on client and therefore an undue burden - Required info that Doc has to give patient is NOT an undue burden, so long as info is accurate
Assisted Suicide “Right to Terminate Life on Own Terms”
This is not a fundamental right to assisted suicide. So state may regulate or ban it (but State doesn’t have to if they don’t want to)
2 Distinctive Parts to Access to Justice
(1) Right to go into independent judiciary
(2) Right to remedy for a wrong the government has committed
Right to Vote
If something looks, smells, or acts like a poll tax… it gets strict scrutiny
Right to Vote Balancing Test
(1) Degree of intrusion of the right to vote (How hard to make it to vote)
(2) The government’s interest.
PLAINTIFF’S ARGUMENT FOR RIGHT TO VOTE
- Voter ID operates as an absolute bar and therefore, strict scrutiny applies and fails.
(There is a lessor discriminatory way) - Even if it is a general law, it fails under balancing test.
Government will apply the opposite sides.
2 Distinctive Parts to Access to Justice
(1) Right to go into independent judiciary
(2) Right to remedy for a wrong the government has committed
When will the Court strike the fee?
- The Court will strike the fee when there is an absolute bar to justice, in a case where it involves a fundamental right or important right
Right to Vote?
This is just a balancing test, not trying to heightened level of review.
Examples of when Court will strike a fee.
Fee for filing divorce (like marrying, it’s a fundamental right)
Appellate fee when woman was about to lose her children (fundamental right to parent)
