Fundamental RightsA. 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 Privacy1. Marriage- fundamental right; a law prohibiting a class of adults from marrying is likely to be invalidated

unless the government can demonstrate that the law is narrowly tailored to promote a compelling interest.2. Use of Contraceptives- a state cannot prohibit distribution of nonmedical contraceptives to adults except

through licensed pharmacists.3. Abortion- the right to privacy includes the right of a woman to have an abortion under certain

circumstances without undue interference from the state. [Roe v. Wade]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 woman’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 woman with truthful information about the nature of the procedure, the health risks of abortion and childbirth, and the probable gestational age of the fetus [Planned Parenthood v. Casey]

ii) Waiting Period- requiring a 24-hour waiting period between the time the woman 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 (one or both) consent to have an abortion (or give notice to them even if their consent is not required) if there is a bypass procedure whereby the minor may obtain the abortion (without notice to or consent of her parents) with the consent of the judge. The judge is required to make a prompt decision as to:(a) Whether the minor is sufficiently mature to make her abortion decision, and(b) If she is not sufficiently mature, whether having an abortion without notice to her parents is in her best interests. [Casey]

iv) Spousal Consent- it is an undue burden to require a woman to sign a statement that she has notified her spouse that she is about to undergo an abortion [Casey]

v) Physician only requirement- a law restricting the performance of abortions to licensed physicians does not impose an undue burden on a woman seeking 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. Such a ban would impose an undue burden on a woman’s right to choose a pre-viability abortion. [Stenberg](a) However, a state could bar one type of partial-birth abortion if there are other adequate, safe methods of abortion available and the law provides an exception for those instances when 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 woman’s right to choose an abortion, but it does not override the state’s interest in the woman’s health.i) After viability, the state can prohibit a woman from obtaining an abortion unless an abortion is

necessary to protect the mother’s life or health.ii) Viability is a medical question, and a state cannot unduly interfere with the attending physicians

judgment as to the reasonable likelihood that the fetus can survive outside the womb.c. Financing Abortions- neither federal nor local governments are required to grant medical benefit

payments for abortions to indigent women, even if they grant benefits to indigent women 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 within the scope of her public employment from performing or assisting in the performance of abortions.

4. Obscene Reading Material- the right of privacy encompasses the freedom to read obscene material in your home, except for child pornography. [Stanley v. Georgia] It does not include the right to sell, purchase, receive, or transport obscene material.

5. Keeping Extended Family Together- the right to privacy includes the right of family members- even extended ones- to live together. A zoning ordinance cannot prohibit extended families from living in a single household since there is no compelling interest to justify such a rule. [Moore v. Cleveland]

6. Rights of Parents- parents have a fundamental right to make decisions concerning the care, custody, and control of their children. [Troxel v. Granville]a. Education- although the state may prescribe reasonable educational standards, it may not require that all

children be educated in public schools. [Pierce v. Society] Neither may the state forbid education in a language other than English. [Meyer v. Nebraska]

b. Visitation- a state law was found to be overbroad and in violation of parents’ right where it:i) Authorized the courts to grant any person (including grandparents) a right to visit a child upon

finding that this would be in the child’s best interests andii) Did not allow the judge to give significant weight to the parent’s offer of meaningful visitation

opportunity and the traditional presumption that a fit parent will act in the child’s best interest.7. Sodomy

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 Bowers, there is an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex; their right to liberty under the DPC gives them the full right to engage in conduct without intervention of the government. The Texas statute did not further a legitimate state interest, which can justify its intrusion into the personal and private life of the individual.

C. Right to Vote- the right to vote is fundamental. Restrictions on voting, other than on the basis of age, residency, or citizenship, are invalid unless they can pass strict scrutiny.D. Right to Travel

1. Nature of right: individuals have a fundamental right to travel from state to state, which encompasses the right: (1) to leave and enter another state, and (2) to be treated equally if they become permanent residents of that state. [Saenz v. Roe]

2. A state law that distinguishes between residents of the state on the sole basis of their length of residency will serve no legitimate state interest. (Mere rationality test)

3. International travel: The SC 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 DPC of the 5th Amend.

E. Right to Refuse Medical Treatment1. Vaccination- 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.2. Refusal of Medical Treatment- The Supreme Court has assumed that a mentally competent adult has the

right to refuse lifesaving medical treatment (including lifesaving nutrition). [Cruzan v. Director]a. No Right to Assisted Suicide- there is no general right to commit suicide; thus, a state may ban persons

from giving individuals assistance in committing suicide. [Washington v. Glucksberg] 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 well-established distinction between letting someone die and making someone die. [Vacco v. Quill]

3. Family or Guardian Decisions for Comatose Adult- a state may give relatives or the guardian of an individual the power to decide whether to refuse lifesaving medical treatment if the individual is incapable of making or expressing the decision, but the state does not have to grant this power. If the state chooses to grant the power, it can condition the power on proof, by clear and convincing evidence that the comatose adult would have chosen to refuse medical treatment if she were capable of making the decision and expressing herself. [Cruzan v. Director]