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Fundamental Rights Outline

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Fundamental Rights Travel Saenz v. Roe In Saenz, the Court, for essentially the first time in American history, used the privileges or immunities clause of the Fourteenth Amendment to invalidate a state law. The case involved a California law that limited welfare benefits for new residents in the state to the level of the state that they moved from for their first year of residence. Stevens, J., writing for the Court, emphasized that the right to travel is a fundamental right, and explained that one aspect of this is the right of new residents to be treated the same as longer term residents of a state. Further, although the Court recognized that the denial of benefits was not likely to substantially deter travel, "since the right to travel embraces the citizen's right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty." ( #expressive_harm ). TRIBE had this to say: "Saenz revealed a Court far more comfortable protecting rights that it can describe in architectural terms, especially in terms of federalism, than it is protecting rights that present themselves as spheres of personal autonomy or dimensions of constitutionally mandated equality." Further: "States are able to serve as centers of democratic choice because, at least in theory, people choose their states of residences rather than the other way around. People vote with their feet on a lasting basis in deciding which state to call home, and they vote with their feet in a less permanent way in deciding where to take a holiday, where to seek employment, where to attend college, and so forth. If people did not have these choices but were essentially stuck in the state in which they were born and whatever states would have them, the "love it or leave it" answer to people objecting to their state's laws would be unavailable."

Voting Harper v. Virginia State Bd. of Elecs. In Harper, the Court held that Virginia's $1.50 poll tax violated the Equal Protection Clause because the right to vote was a fundamental right. "The right to vote in state elections is nowhere expressly mentioned in the Constitution, but once the franchise is granted lines may not be drawn which violate equal protection." The Court rejected Black, J's dissenting opinion, which pointed out that property qualifications for voting had a long historical pedigree in the United States, pointing out that "notions of what constitutes equal treatment for the purposes of the Equal Protection Clause do change" and that the Court should not be confined to historic notions of equality. TRIBE notes that the 24th Amendment suggests a negative pregnant for the Equal Protection Clause. But the enactment of the 24th Amendment can also be thought to redefine the "privileges or immunities" of United States citizenship that citizens are entitled to equality in enjoyment, suggesting that incorporation of the standards against the states might be appropriate upon a judicial finding that the right was deemed fundamental.

The Voter ID Case (Crawford v. Marion County Elec. Bd) In The Voter ID Case, the Court rejected a facial challenge to an Indiana law requiring each voter to present government-issued photo identification as a condition of voting. Stevens, J., writing for the plurality, wrote that "evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious and may be upheld based on relevant and legitimate sate interests sufficiently weighty to justify the limitation." The plurality concluded that the interests asserted by Indiana
- including prevention of vote fraud and safeguarding voter confidence - were both neutral and sufficiently strong to require a rejection of the facial attack. However, Stevens left open the possibility that otherwise qualified voters might be able to establish on an individual basis that they faced such severe difficulties in obtaining government issued photo identification that the statute would be unconstitutional as applied to them." The plurality made no mention of the likelihood that the rule would have a disparate impact. Scalia, J., concurring in the judgment, explicitly rejected the notion that a voter complaining about discriminatory impact could bring an equal protection challenge: "A generally applicable law with disparate impact is not unconstitutional," absent proof of discriminatory intent. Souter, J., dissented, and argued that the Court should have applied heightened scrutiny: "A state may not burden the right to vote merely by invoking abstract interests, but must make a particular, factual showing. The State has made no justification here. Without a shred of evidence that in-person voter fraud is a problem in the State, Indiana has adopted one of the most restrictive photo identification requirements in the country."

Contraception and Abortion Skinner v. Oklahoma In Skinner, the Court declared unconstitutional the Oklahoma Habitual Criminal Sterilization Act, which allowed state courts to order the sterilization of those convicted two or more times of crimes involving "moral turpitude." Expressly exempted were embezzlement, political offenses, and revenue act violations. Thus, one convicted three times of larceny could be subject to sterilization, but one convicted three times for embezzlement - a crime of the same essential nature - could not. Douglas, J., writing for the majority, concluded that the law violated equal protection. In so holding, he also emphasized that the Court was dealing with "legislation which involves one of the basic civil rights of man," and that "marriage and procreation are fundamental to the very existence and survival of the race." The majority further concluded that government imposed involuntary sterilization must be met with strict scrutiny. Stone, C.J., concurred in the result, but felt that the law violated procedural due process. "A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation, is lacking in the first principles of due process." Griswold v. Connecticut In Griswold, the Court declared unconstitutional a state law that prohibited the use and distribution of contraceptives. Douglas, J., writing for the majority, found that the right to privacy was a fundamental right, but attempted to found this right in the penumbras of the First, Third, Fourth, and Fifth Amendments, rather than in the due process clause. Notably, the Court found that the Connecticut statue infringed on the

privacy of a marital couple in their bedroom; but did not focus on a substantive right to procreative autonomy. Goldberg, J., delivered a concurring opinion emphasizing the Ninth Amendment as authority for the Court to protect non-textual rights such as privacy. He wrote: "To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because the right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and give it no effect whatsoever." Further, he noted that if mere rational basis review were applied to decisions affecting reproductive choice, "a law requiring compulsory birth control would also seem to be valid." Harlan, J., concurred in the judgment and argued that the right to privacy should be protected under the liberty clause of the due process clause. Harlan recognized the need for caution when invalidating legislation under the substantive due process, but was skeptical that Douglas's approach would provide more restraint: "Judicial self-restraint will be achieved ... only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms." Due process "represent[s] the balance which our Nation ... has struck between
... liberty and the demands of organized society." "The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution" but is a "rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints." Eisenstadt v. Baird In Eisenstadt, the Court overturned a conviction for violating a law making it a felony to distribute contraceptive materials except in the case of registered physicians and pharmacists furnishing the materials to married persons. The Court held that the statute violated the equal protection clause, because "whatever the rights of the individual to access contraceptives may be, the rights must be same for the unmarried and the married alike." Relying on Griswold, the Court wrote that "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 persons as the decision whether to bear or beget a child." Roe v. Wade In Roe, the Court held that the Constitution protects a right for a woman to choose to terminate her pregnancy prior to viability. The Court reasoned that: "The right of privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." It held that strict scrutiny was to be used in evaluating state laws that burden the right to have an abortion, which was a fundamental right. The Court note that "at common law, at the time of the adoption of the U.S. Constitution ... a woman enjoyed a substantially broader right to terminate a pregnancy" than she did under the law under review. TRIBE wrote that "the right to end pregnancy might be seen more plausibly as a matter of resisting sexual domination than as a matter of shielding from public control "private" transactions." "Although current law nowhere forces men to sacrifice their bodies and restructure their lives even in those tragic situations where nothing less will permit their children to survive ... those who would outlaw abortion

would rely on physiological circumstances ... to conscript women as involuntary incubators." Planned Parenthood v. Casey In Casey the Supreme Court reaffirmed Roe's "core holding" that states cannot prohibit abortion prior to viability, because this would impermissibly infringe on the woman's liberty under the due process clause, interpreted in light of the Ninth Amendment. "The liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The suffering of a mother who carries a child to term is too intimate and personal for the state to insist, without more, upon its own vision of the woman's role. The destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society." "Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state's interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty." However, the plurality overruled Roe's trimester framework and it use of strict scrutiny for evaluating government regulations of abortion, instead stating that regulations of abortion prior to viability are tolerable unless they impose an "undue burden" on access to abortion. A law is said to place an undue burden on abortion rights if "its purpose or effect is to place a substantial obstacle in the path of the woman seeking an abortion ..." Applying the undue burden framework, the Court upheld a 24-hour waiting period, and a requirement that the woman be told of the availability of detailed information about the fetus, and the reporting and recordkeeping requirements. But the Court held that the spousal notification requirement was unconstitutional. Casey contains an interesting dialogue on the question whether the right to reproductive autonomy is symmetrical. The plurality, joined by Blackmun and Stevens, JJ., argued that without Roe, "the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control ... Yet Roe has been relied upon to counter any such suggestions." Scalia, J., responded that "the Court's contention that the only way to protect childbirth is to protect abortion shows the utter bankruptcy of constitutional analysis deprived of tradition as a validating factor." Gonzalez v. Carhart In Carhart, the Court upheld a facial attack on the federal Partial Birth Abortion Ban Act, despite the fact that it had no health exception. The Court concluded that the government's interests in preventing partial birth abortion were sufficient to uphold the law, and that the Act did not present an undue burden to women seeking late-term, but pre-viability abortions, but left open the possibility that a woman could bring an as-applied challenge to the law. Notably, the Court stated that it was legitimate for the government to ban partial birth abortion, in part because this procedure bore a "disturbing similarity to the killing of a newborn infant" and was therefore "laden with the power to devalue human life." Ginsburg, J., dissenting, argued that the law was underinclusive, because standard D&E (not banned by the Act) was at least as brutal as intact D&E, and perhaps more so. The majority dismissed this argument, stating that even if this was true, "it was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public's perception of the appropriate role of the physician during the delivery process." Ginsburg, J., also argued that the banned procedure was in many cases the

safest for the woman, and; the majority dismissed this argument, suggesting that in the face of "medical uncertainty," the government's decision was permissible. Abortion Funding Cases In Maher v. Roe, the Court upheld the constitutionality of a state law that denied the use of Medicaid funds for nontherapeutic first trimester abortions. The Court noted that it had never held that financial need alone identified a suspect class. "Roe did not declare an unqualified right to an abortion. Rather, the right protects the woman only from unduly burdensome interferences with her freedom to decide whether to terminate her pregnancy. It implies no limitations on the authority of State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of funds." In Harris v. McRae, the Court upheld a federal law, the Hyde Amendment, that prohibited the use of federal funds for performing abortions "except where the life of the mother would be endangered if the fetus was carried to term" or cases of reported rape or incest. The Court stated that "it cannot be that because the government may not prohibit the use of contraceptives or prevent parents from sending their children to a private school, government, therefore, has an affirmative constitutional obligation to ensure that all persons have the financial resources to obtain contraceptives or send their children to private schools." Further, the prohibition on the use of federal funds for abortion "leaves an indigent woman with at least the same range of choices in deciding whether to obtain a medically necessary abortion as she would have had if Congress chose to subsidize no health care costs at all." This is in accord with a more general principle that the government rarely has an affirmative constitutional duty to provide benefits or to facilitate the exercise of rights. Of Harris, TRIBE wrote: "The Court's willingness to uphold laws whose apparent injustice is thought simply to reflect the world's own cruelty seems most vivid in a case like Harris. In Harris, abortion was not perceived as involving the intensely public question of the subordination of the poor to the rich through the instrument of coerced childbirth for those unable to afford medical procedures placed by the state on an ability-to-pay basis."

The Right to Marry Loving v. Virginia In Loving, the Court held unconstitutional a state law that made it a crime for a white person to marry outside the Caucasian race. The Court found that the statute was obviously an endorsement of White Supremacy, and rejected the notion that "mere equal application of a statute containing a racial classification is enough to remove the classification from the Fourteenth Amendment's proscription of all invidious racial discriminations." "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." The Court also held that the statute violated due process. "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. Skinner v. Oklahoma. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes surely denies due process."

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