Fundamental Interests And The Equal Protection Clause

Transcription

1 Fundamental Interests And The Equal Protection Clause Plyler v. Doe (1982) o Facts; issue The shadow population ; penalizing the children of illegal entrants Public education is not a right guaranteed by the Constitution, but neither is it merely a government benefit Undocumented aliens are not a suspect class; education is not a fundamental right The discrimination can hardly be considered rational unless it furthers some substantial goal of the State.

2 Plyler (cont.) The state s arguments and the Court s responses Held: the challenged law is unconstitutional The concurrences Chief Justice Burger s dissent: noting the Court s quasi-suspect-class and quasi-fundamental-rights analysis and result-oriented approach

3 Modern Substantive Due Process No person shall... be deprived of life, liberty, or property, without due process of law... Amend. V (1791) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amend. IX (1791) No State shall... deprive any person of life, liberty, or property, without due process of law... Amend. XIV, Sec. 1 (1868)

4 Modern Substantive Due Process The Right Of Privacy Griswold v. Connecticut (1965) o The challenged law; standing? The specific guarantees of the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance. o First, Third, Fourth, Fifth, and Ninth Amendments a right of privacy older than the Bill of Rights ; marriage

5 Modern Substantive Due Process The Right Of Privacy Eisenstadt v. Baird (1972): extends Griswold to unmarried persons If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

6 Modern Substantive Due Process Abortion Roe v. Wade (1973) (7-2) o The challenged Texas law This right to privacy, whether it is founded in the Fourteenth Amendment s concept of personal liberty, as we feel it is, or in the Ninth Amendment, is broad enough to encompass a woman s decision whether or not to terminate her pregnancy. The right is not absolute

7 Roe (cont.) Is the fetus a Fourteenth Amendment person? Does life begin at conception? The trimester framework o First trimester: the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient s pregnancy should be terminated. o Second trimester: State may regulate abortion procedures; the regulation must reasonably relate to the preservation and protection of maternal health o Third trimester: the compelling point is viability; the state may prohibit abortion except when it is necessary to preserve the life or health of the mother

8 Modern Substantive Due Process Abortion Viability Abortion funding State resistance The Court s shifting attitudes

9 Modern Substantive Due Process Abortion Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) (5-4) o The challenged law The joint opinion (O Connor, Kennedy, Souter) The Bill of Rights and state practices at the time of the 1868 adoption of the Fourteenth Amendment do not mark the outer limits of the substantive sphere of liberty

10 Casey (cont.) At the heart of liberty is the right to define one s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Overrule Roe? Held: the essential holding of Roe v. Wade should be retained and once again reaffirmed Roe s trimester framework is rejected

11 Casey (cont.) Undue burden: shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus Viability: the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb o The state may not prohibit the termination of a pregnancy before viability

12 Casey (cont.) The state may attempt to persuade the woman to choose childbirth over abortion so long as the abortion right is not unduly burdened Subsequent to viability: the state may regulate and prohibit abortion, except where necessary for the preservation of the life or health of the mother The Pennsylvania statute: medical emergency ; 24- hour waiting period; spousal notification; parental consent; recordkeeping and reporting requirements The last paragraph of the opinion

13 Modern Substantive Due Process Abortion Gonzalez v. Carhart (2007) (5-4) o Federal Partial-Birth Abortion Act of 2003; Stenberg v. Carhart (2000) partial-birth abortion : definition Undue burden: substantial obstacle to late-term but previability abortions? While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant they once created and sustained.... Severe depression and loss of esteem can follow.

14 Carhart (cont.) The lack of an exception for the preservation of the health of the mother is not an undue burden o Note: facial challenge to statute, not an as-applied challenge Justice Ginsburg s dissent o The Congressional findings o The law saves not a single fetus from destruction, for it only targets a method of performing abortion. o The antiabortion shibboleth o Blurring the line between previability and postviability abortions

15 Modern Substantive Due Process Abortion Whole Women s Health v. Hellerstedt (2016) (5-3) o Reviewing Texas House Bill 2 The standard of judicial review Admitting-privileges requirement: undue burden? o Law led to closure of half of state s clinics (fewer doctors, longer waiting times, increased crowding) Surgical-center requirement: undue burden? o No benefit when complications arise in medication-produced abortions; abortions in abortion facilities are safe; childbirth is 14 times more likely than abortion to result in death yet midwives can oversee childbirth in patient s home; grandfathering or waiving for other facilities but not abortion facilities

16 Whole Women s Health (cont.) Justice Thomas dissenting o Court should not have granted third-party standing o The majority s furtive reconfiguration of the standard of scrutiny o The Court reduces constitutional law to policy-driven value judgments Justice Alito dissenting o Noting the absence of proof regarding undue burdens o The Kermit Gosnell scandal

17 Modern Substantive Due Process Same-Sex Intimacy Lawrence v. Texas (2003) o The Texas deviate sexual intercourse law Bowers v. Hardwick (1986): the claim that a right to engage in same-sex sodomy is fundamental is facetious o Bowers historical premises Relevant: our laws and traditions in the past half century... show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex

18 Lawrence (cont.) Equality of treatment and the due process right to demand respect... are linked in important respects... The European Court of Human Rights Dudgeon decision Bowers is overruled Holding: the law furthers no legitimate state interest justifying intrusion into the personal and private life of the individual o Limits The last paragraph of the Court s opinion

19 Lawrence (cont.) Justice O Connor s concurrence Justice Scalia s dissent o Criticizes overruling Bowers o there is no right to liberty under the Due Process Clause o Notes citizens belief that certain forms of sexual behavior are immoral and unacceptable : fornication, bigamy, adultery, adult incest, bestiality, and obscenity o The Court and the law-profession culture have largely signed on to the so-called homosexual agenda. o Implications of the Court s ruling for homosexual marriage