Substantive Due Process

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Two clauses protecting substantive due process

DP Clause of the 5th Amendment -- Applies to feds

DP Clause of the 14th Amendment -- Applies to state/local govts

Non-discriminatory laws which impact economic rights are subject to what standard of review?

Rational basis

Which types of rights are subject to strict scrutiny under the due process clause?

Fundamental rights

4 Major Fundamental Rights

Right to travel

Right to vote

Privacy

All first amendment rights

The government must provide landowners with just compensation under the takings clause if what?

(1) property is TAKEN and (2) the taking is FOR PUBLIC USE

Privacy is a fundamental right under which the Court has articulated several subsidiary rights related to families:

Right to marry

right to procreate

right to live together (including cousins, grandchildren)

Right to control upbringing of children

Privacy is a fundamental right under which the Court has articulated several subsidiary rights related to sex:

Right to possess porn in one's home

Right to have anal sex

Right to purchase and use contraceptives

Right to an abortion

Right to an abortion is a unique fundamental right in that it's not subject to strict scrutiny, but rather what test?

The under burden test

Prior to viability, what's the test for regulation of abortion?

undue burden

After viability, what's the test for regulation of abortion?

State can PROHIBIT ABORTION after viability UNLESS NECESSARY TO PROTECT WOMAN'S LIFE OR HEALTH

Are the following pre-viability regulations an undue burden:

24-hour waiting period?
Parental Consent?
Spousal Consent/notification?
Informed Consent?
Physicians Only Can Perform?

None of these, EXCEPT SPOUSAL CONSENT/NOTIFICATION.

Basically, risk of violent retaliation = undue burden.

Test for undue burden pre-viability?

Does it pose a substantial obstacle to abortion?

Note: Prior to the undue burden test the court upheld requiring abortions in clinics/hospitals and sending tissue samples to pathologists. (Would be okay today)

Note: Prior to the undue burden test the court STRUCK DOWN approval by second physician or hospital committee for early term abortions, BUT it's UNCLEAR whether these are OKAY

Can a state law grant visitation rights to "any person" if Court determines it's in the best interest of the child and if the law forbids the judge from considering a parent's offer for meaningful vistiation?

Nope, this violates the parents right to raise their children and the presumption parents act in the best interest of their children.

Can Tennessee require parental notice and consent for unmarried minors seeking an abortion?

Yes, BUT only if the law also includes an ALTERNATIVE PROCEDURE where the minor can OBTAIN ABORTION by going before A JUDGE who determines its in minor's best interest and minor is mature enough to decide.

The right to refuse medical treatment is protected by the 5th and 14th amendment DP clauses. What's the standard of review?

SCOTUS has not articulated one; only ruled on specific situations.

Can Tennessee require vaccinations against CONTAGIOUS diseases?

Yeah, the govt interest is pretty big.

Can Tennessee prevent family members from terminating treatment for another?

Yes

Can the state force criminal defendants to take antipsychotic drugs to make defendant competent to stand trial?

Yeah, the defendant cannot avoid taking drugs for the purpose of being incompetent to stand trial

A Missouri law which required what before terminating treatment was upheld by SCOTUS?

Clear and Convincing Evidence the person wanted treatment terminated (living will, etc.)

The Right to Bear Arms is a fundamental right and has been incorporated. Level of scrutiny is unknown, but it's not an absolute right. One defined test is what:

Right to own weapons and keep them in home for traditional purposes, like protection and hunting.

The fundamental right to travel protects the right to do what?

(1) travel from state-to-state

(2) be treated equally if a citizen becomes a permanent resident of another state. (RESIDENCY REQUIREMENTS GENERALLY NOT OKAY)

Waiting periods and distinctions btw old and new citizens are generally invalid. Can Tennessee impose a one-year waiting period on the following:

- state subsidized medical care?

- state welfare benefits?

- divorce?

Only for the divorce (this is the only permissive residency requirement in the BarBri outline)

A state CAN require voters to register to vote in a primary #-# months before the primary, but not # months.

10-11 months in advance is okay, but not 23 months

Does the right to travel apply to international travel?

International travel =/= fundamental right, BUT free from ARBITRARY FEDERAL INTERFERENCE.

Do residency requirements infringe on the fundamental right to vote?

NO, but ONLY IF there are RELATIVELY SHORT (30 days). (And Congress can override a state residency requirement for presidential elections)

A state can restrict voting to only registered votes. Can the state prevent the democratic party from having a primary and allowing everyone, including unregistered people, to vote?

Nope, Freedom of Association

If a state establishes districts for CONGRESSIONAL elections, the # of citizens in each district must be

almost identical

If a state establishes districts for electing representatives to STATE OR LOCAL GOVERNMENTAL BODIES, the # of citizens in each district must be

relatively equal BUT anything REASONABLE and TAILORED TO PROMOTE A LEGITIMATE STATE INTEREST

Bush v. Gore requires

counting uncounted ballots in presidential elections WITH STANDARDS TO GUIDE ballot examines in determining the INTENT OF THE VOTER. (VIOLATES EQUAL PROTECTION - NOT DP since voters treated differently)

Applies to counting and recounting.

Political gerrymandering is permitted, but not

race-based gerrymandering. Note political gerrymandering can be along racial lines, it just can't be based on race.

CANNOT DRAW DISTRICTS TO HARM OR BENEFIT MINORITIES

Is there a fundamental right to education?

Nope, just rational basis.

Fundamental right to physician-assisted death?

Nope, just rational basis.

Fundamental right to engage in consensual homosexual behavior?

Yes and no. Technically, no since no articulable standard of review, just that it's allowed.

Fundamental right to practice a trade or profession?

No, just rational basis (so okay to regulate professions, obviously)

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