Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 4

Modern Revival of SDP

• Begins in 1960s, focusing on noneconomic fundamental rights not enumerated in constitution
  • Basis? 9A- Enumeration of bill of rights does not deny or disparage rights retained by the people
    • Unenumerated rights exist and are just as important as the bill of rights
• Griswold v. CT , law prevented prescriptions and use of contraceptives for married couples → court strikes down based on implicit fundamental right to marital “privacy”
  • How they get there? → looking to “shadows” “penumbras” of other amendments
    • ie – 1A, 4A, amendments based on zones of certain privacy interests
    • Scope isn’t limited to marital privacy, also right of individual privacy
      • Extended to unmarried persons in Eisenstadt
  • Wallace: “privacy right” is too general, could have struck down law by RB test
    • Catholic legislature proposed this ban based on animus

Unenumerated Fundamental Rights

• This begs the question- how do we know what is a “fundamental right”? And what level of generality should they be defined? Approaches:
  • Rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental”
    • Snyder v. Massachusetts (1934) ‣
  • Rights “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if sacrificed”—
    • Palko v. Connecticut (1937) ‣
  • Rights “deeply rooted in nation’s history and tradition”—
    • Moore v. East Cleveland (1977) (cited in Glucksberg, p. 1610)
• Three views about unenumerated fundamental rights:
  1. No unenumerated fundament rights—the only constitutional rights are enumerated
  2. Non-enumerated fundamental rights exist, but they are consensus rights deeply rooted in our nation’s history and tradition
     • Wallace’s view
       • Wallace says 9th Amendment “deny” and “disparage” is a place where these unemurated rights can be found
     • Not 100% agreement but deeply rooted general consensus
  3. Non-enumerated fundament rights exist, but they originate in concepts of personal autonomy and dignity as defined by current culture and declared by SCOTUS

Analytical Framework for Substantive Due Process

1. Identify the right/liberty interest involved
   1. Be specific!!! Not just “right to privacy”
2. Is the right/interest infringed?
3. Determine level of scrutiny
   1. Enumerated right
      1. (warrants own analysis, fundamental right analysis applies only to analysis of incorporating BOR)
   2. Unenumerated right (from common law, tradition, penumbras, etc.)
      1. If fundamental right → apply strict scrutiny
         1. Marital privacy, raising children, abortion
      2. Non-fundamental → apply minimal scrutiny
         1. Property and economic regulations
         2. Will probs be upheld
4. Is there a sufficient justification for the government’s infringement of the right?
   1. Fundamental = compelling
   2. Non-fundamental = legitimate
5. Is the means sufficiently related to the end?
   1. Fundamental = least restrictive means
   2. Non-fundamental = rational relationship between means and end

Abortion

• Roe v. Wade: Court shifts from “privacy” to “liberty” and personal autonomy interest
  • If Court followed “deeply rooted consensus” view → would have probably upheld the abortion ban
    • Abortions have been banned for a long time, 50/50 controversy is not consensus
    • No other right subordinates one’s life in favor of another
      • Except maybe self defense
  • Holding at the time:
    • States can’t regulate during first trimester
    • Second trimester- States can regulate to protect mother’s health
      • But not life of the unborn!
    • Third trimester- State CAN regulate to protect POTENTIAL LIFE OF UNBORN, except when necessary to protect LIFE and HEALTH of mother
      • Broad in what “health of mother” entailed
      • Essentially large enough health exception that this is constitutional right to abortion at any point
  • Issues with substantive due process?
    • Undermines democratic process
    • Legislature is best position to decide these types of matters
• Planned Parenthood v. Casey: Court upholds 24 hour waiting period and parental consent (w/ judicial bypass) provisions; but strikes down spousal consent/notification requirement
  • Liberty interest of 14A once again linked to personal dignity and autonomy
  • Replaces Roe’s trimester framework with straight pre-/post-viability line and moves when viability occurs
    • State regulations BEFORE viability line are reviewed under strict scrutiny if they cause an “undue burden” or “substantial obstacle”
      • But woman’s health exception for post-viability abortions still in effect
  • Even under the third trimester, Court has carved out an exception that swallows the rule
• Updates in modern court
  • Whole Women’s Health v. Hellerstedt (2016) Challenge to TX laws that (1) required physicians to have admitting privileges at nearby hospital and (2) required abortion clinics to have facilities comparable to ambulatory surgical clinics
    • Holding: Unconstitutional. Laws placed substantial obstacle in path of women seeking abortion and, therefore, constitute an undue burden on abortion access
    • Significance: Harder for states to enact medical regulations covering pre-viability abortions unless they can point to evidence that such regulations demonstrably protect the health of the mother